Healthcare Ally Management of California, LLC v. Unitedhealthcare Services, Inc.
Filing
39
ORDER GRANTING IN PART AND DENYING IN PART 19 MOTION TO DISMISS Count 3 of the Complaint is DISMISSED without prejudice. All other aspects of the Motion to Dismiss are DENIED. The Plaintiff may file an amended complaint by November 6, 2024. By Octo ber 31, 2024, the parties shall file an amended joint scheduling report, as required by S.D. FLA. L.R. 16.1(b)(2). The Clerk shall LIFT the stay and REOPEN this case. Signed by Judge Roy K. Altman on 10/22/2024. See attached document for full details. (wce)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-cv-22455-ALTMAN/Reid
HEALTHCARE ALLY MANAGEMENT
OF CALIFORNIA, LLC,
Plaintiff,
v.
UNITEDHEALTHCARE
SERVICES, INC.,
Defendant.
____________________________________/
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Our Plaintiff, Healthcare Ally Management of California, LLC (“HAMOC”), accuses the
Defendant, UnitedHealthcare Services, Inc. (“UHC”), of failing “to make proper payments” to certain
medical providers “for surgical care, treatment and procedures provided to Patients, who are insureds,
members, policyholders, certificate-holders or otherwise covered for health, hospitalization and major
medical insurance through policies or certificates of insurance issued and underwritten by [UHC].”
Complaint [ECF No. 1] ¶ 10. UHC has moved to dismiss the Complaint on four different grounds.
See generally Motion to Dismiss (“Motion”) [ECF No. 19]. 1 After careful review, we GRANT in PART
and DENY in PART UHC’s Motion.
THE FACTS
Between May 24, 2018, and December 27, 2019, twelve different patients—all insured by
UHC—underwent surgical procedures at one of three South Florida hospitals (the “Providers”):
The Motion has been fully briefed and is ripe for adjudication. See Opposition to Defendant’s Motion
to Dismiss (“Response”) [ECF No. 22]; Reply in Support of Motion to Dismiss (“Reply”) [ECF No.
25].
1
Hollywood Regional Surgical Center (“HRSC”); Palm Beach Gardens Regional Surgical Center
(“PBGRSC”); and Miami Regional Surgery Center (“MRSC”). See Complaint ¶¶ 37, 69, 101, 133, 165,
197, 229, 261, 293, 325, 357, 389. The Complaint’s factual allegations about each of these twelve
patients are substantially the same. An employee from the Providers would contact UHC and ask
whether the insurer was prepared to pay the “usual, customary, reasonable, and allowed” UCR 2 rates
for the relevant medical procedures—a question the UHC employee would always answer in the
affirmative. See, e.g., Complaint ¶¶ 41–42 (“[The Providers] asked: does Defendant pay based on UCR
for [the relevant] procedure codes . . . and other similar codes within the same family? Defendant
represented to [the Providers] that for services in connection with these procedure codes, Defendant
pays the UCR rate.”). When the Providers’ employee asked if UHC “use[s] a Medicare Fee Schedule
to pay for these procedure codes?” the UHC employee confirmed that its “payment would not be
based on the Medicare Fee Schedule.” Id. ¶¶ 43–44. UHC also never told the Providers that the
patients’ policies were “subject to certain exclusions, limitations or qualifications, which might result
in denial of coverage, limitation of payment or any other method of payment unrelated to the UCR
rate.” Id. ¶ 46. The Providers “relied and provided services solely based on Defendant’s statements,
promises and representations.” Id. ¶ 51.
According to HAMOC, however, UHC’s representations to the Providers were false. UHC
“knew or should have known that it would not be paying [the Providers] at the UCR rate” and knew
that “it would be paying [the Providers] at Medicare rate.” Id. ¶¶ 48–49. UHC also failed to inform the
Providers that the patients’ plans “might have an anti-assignment provision and that [UHC] would
The “UCR rate” is usually “determined based on the amount providers usually, customarily, and
reasonably charge for a given service in a given geographic area.” Urology Ctr. of Ga., LLC v. Blue Cross
Blue Shield Health Plan of Ga., Inc., 2010 WL 797204, at *1 (M.D. Ga. Mar. 4, 2010) (Royal, J.).
2
2
only speak or direct correspondence to the Patient.” Id. ¶ 59. 3 UHC then significantly underpaid the
Providers for the medical procedures they performed. See, e.g., id. ¶ 64 (“The total bill for Patient’s
services was $104,950.70. Defendant did not pay HRSC based on HRSC’s billed charge as Defendant’s
payment was $3,155.85.”); id. ¶ 96 (“The total bill for Patient’s services was $327,156.25. Defendant
did not pay HRSC based on HRSC’s billed charge as Defendant’s payment was $27,073.30.”); id. ¶
128 (“The total bill for Patient’s services was $189,007.00. Defendant did not pay HRSC based on
HRSC’s billed charge as Defendant’s payment was $17,350.80.”).
The Providers then tried to secure additional payments from UHC to no avail. See id. ¶¶ 58,
61 (“Over the next couple of months, [the Providers] sent numerous appeal letters to [UHC] . . . to
exhaust all of Patient’s and HRSC’s administrative remedies. . . . Despite the appeals, [UHC] refused
to make any additional payment.”). On August 31, 2022, the Providers “assigned Patients’
underpaid/unpaid bills, including the right to file a lawsuit, to HAMOC[.]” Id. ¶ 9. With this
assignment in hand, HAMOC filed our Complaint against UHC, asserting three counts. In Count 1,
HAMOC alleges that UHC engaged in “negligent misrepresentation” by “falsely represent[ing] to [the
Providers] that payment for services would be based on UCR and not Medicare.” Id. ¶ 422. Count 2
advances a promissory-estoppel claim based on UHC’s alleged “material representations and
misrepresentations,” which caused the Providers to act with “detrimental reliance thereon[.]” Id. ¶
435. And Count 3 seeks, in the alternative, to “recover benefits and enforce rights to benefits” under
the Employee Retirement Income Security Act of 1974 (“ERISA”). Id. ¶ 438; see also, e.g., id. ¶ 58 (“In
the alternative, pursuant to 29 U.S.C. §1132 (a)(1)(B), Defendant has failed to reimburse Patient and
[the Providers] in accordance with the terms of Patient’s ERISA Plan.”).
This is relevant because, “prior to services being rendered,” the patients “assigned all rights to
reimbursement for medical services” to the Providers. Complaint ¶ 54.
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THE LAW
To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this
“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550
U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at
555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10
(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “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.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual
allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.
JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016). “The motion is granted only when the
movant demonstrates that the complaint has failed to include ‘enough facts to state a claim to relief
that is plausible on its face.’’’ Ibid. (quoting Twombly, 550 U.S. at 570).
ANALYSIS
In its Motion, UHC advances four arguments. First, UHC contends that HAMOC “cannot
maintain this lawsuit” as a matter of state law because it is a “debt collector . . . who has not registered
in Florida,” as required by FLA. STAT. §§ 559.544 and 559.553. Motion at 8. Second, UHC asks us to
dismiss the Complaint because the allegations “are too indefinite to support any of its causes of
action.” Ibid. Third, UHC says that Counts 1 and 2 “are defensively preempted under ERISA and
require dismissal with prejudice.” Id. at 14. Fourth, UHC takes the unorthodox approach of asking us
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to “reserve ruling” (pending discovery) on whether there are “anti-assignment provisions in [the] plan
documents” that require dismissal. Id. at 16. Although we agree with UHC that Count 3 of the
Complaint is too indefinite to support an ERISA claim, we reject the rest of its arguments.
I.
HAMOC Wasn’t Required to Register with the State
According to UHC, HAMOC “is a California debt collector” who “transacts with Florida
medical providers to obtain contractual assignment rights on their allegedly unpaid or underpaid bills,
and then seeks to collect on those bills.” Id. at 5–6 (citing Complaint ¶¶ 5–10). UHC adds that “[d]ebt
collectors must obtain and maintain valid licenses with the [Florida] Financial Services Commission’s
Officer of Financial Regulation”; otherwise, they “cannot legally bring suit to collect on the debt in
Florida.” Id. at 6–7. And (UHC says) HAMOC is “not registered to transact business in Florida, much
less act as a regulated debt collector.” Id. at 6; see also Florida Office of Financial Regulation Records
[ECF No. 19-1] (showing that HAMOC is not a registered debt collector in Florida). 4 In response,
HAMOC argues that these licensing requirements apply only to “debt collectors who collect run-ofthe-mill debts” and to those “who are in the business of soliciting or collecting ‘commercial claims’”—
not to alleged debts between an insurance company and a medical provider. Response at 9–10. We
agree with HAMOC.
This question requires us to analyze the interplay between two separate (but similar) Florida
statutes: the Florida Commercial Collection Practices Act (the “Commercial Act”), FLA. STAT. §§
559.541–.548, and the Florida Consumer Collection Practices Act (the “Consumer Act”), FLA. STAT.
§§ 559.55–.785. The Florida Legislature enacted these statutes “as a means of regulating the activities
UHC asks us to take judicial notice of the Florida Office of Financial Regulation’s records as a
“matter[ ] of public record[.]” Motion at 6 (quoting Halmos v. Bombardier Aerospace Corp., 404 F. App’x
376, 377 (11th Cir. 2010)). HAMOC doesn’t object to this request and, in any event, doesn’t deny
UHC’s assertion that it (HAMOC) isn’t a registered debt collector in Florida. See generally Response.
So, we’ll agree to take judicial notice of these records.
4
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of consumer collection agencies within the state” and to curb “a series of abuses in the area of debtorcreditor relations.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (cleaned up).
Both statutes require debt collectors to register with the State of Florida before conducting their debtcollection business in this state. See FLA. STAT. § 559.544(1) (“No person shall engage in business in
this state as a commercial collection agency, as defined in this part, or continue to do business in this
state as a commercial collection agency, without first registering in accordance with this part and
thereafter maintaining such registration.”); id. § 559.553(1) (“A person may not engage in business in
this state as a consumer collection agency or continue to do business in this state as a consumer
collection agency without first registering in accordance with this part, and thereafter maintaining a
valid registration.”); see also LeBlanc, 601 F.3d at 1197 (holding that the defendant had to comply with
the Consumer Act’s registration requirements because its “business activities clearly involve ‘collecting
or attempting to collect consumer debt’ from debtors located within Florida by means of interstate
communication originating from outside of the state”).
But these statutes have their limits. Both the Commercial and Consumer Acts focus on certain
types of debts and certain kinds of debt collectors. The Commercial Act applies only to “commercial
collection agenc[ies]” that collect on claims “arising out of a transaction wherein credit has been
offered or extended to any person, and the money, property, or service which was the subject of the
transaction was primarily for commercial purposes and not primarily for personal, family, or household
purposes[.]” FLA. STAT. § 559.543(1)–(2) (emphasis added). Similarly, the Consumer Act applies to
debt collectors who “collect consumer debt from debtors located in [Florida]”—and “consumer debt” is
defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction
in which the money, property, insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes[.]” FLA. STAT. § 559.55(6), (11) (emphases
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added). 5 HAMOC relies heavily on the text of the statutes, arguing that it is not “collect[ing] debts
that involve ‘credit being offered or extended to another person,’ such as credit cards, mortgages, auto
loans, etc.,” and that the debts at issue here don’t “come even close to being encompassed by the term
‘commercial claim’ as defined by the statute.” Response at 10. We agree.
HAMOC says that UHC failed “to make proper payments and/or [underpaid] the [Providers],
of amounts due and owing now to [HAMOC] for surgical care, treatment and procedures provided
to Patients, who are insureds, members, policyholders, certificate-holders or otherwise covered for
health, hospitalization and major medical insurance through policies or certificates of insurance issued
and underwritten by [UHC].” Complaint ¶ 10. In other words, the Providers assigned HAMOC the
alleged debt UHC owed them for underpaying “the healthcare expenses incurred” by its insureds. Id.
¶ 12. If this debt can be classified as either a “commercial claim” or “consumer debt” under Florida
law, then we’d agree with UHC that HAMOC cannot attempt to collect these debts without first
registering with the State. See LeBlanc, 601 F.3d at 1198 (“[R]equiring Unifund to register with the State
of Florida before filing a lawsuit is a reasonable condition precedent to filing a claim.”). But, under
either the Consumer Act or the Commercial Act, we don’t think HAMOC had to register with the
State before collecting on these debts.
Starting with the Consumer Act, a debt owed by a health insurance company isn’t a “consumer
debt.” We’ll pause here to note that “the collection of medical debt” arising from a patient’s failure to
The Consumer Act’s definition of consumer debt mirrors the definition in the federal Fair Debt
Collection Practices Act (“FDCPA”). See 15 U.S.C. § 1692a(5) (“The term ‘debt’ means any obligation
or alleged obligation of a consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are primarily for personal,
family, or household purposes, whether or not such obligation has been reduced to judgment.”). And,
while the FDCPA and the Consumer Act “are not identical,” the Consumer Act “provides that, in
interpreting it, courts must give ‘great weight’ to the interpretation of the federal act.” Alecca v. AMG
Managing Partners, LLC, 2014 WL 2987702, at *6 (M.D. Fla. July 2, 2014) (Davis, J.) (quoting FLA.
STAT. § 559.77(5)).
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pay his medical bills is a “consumer debt” for purposes of the FDCPA. Mais v. Gulf Coast Collection
Bureau, Inc., 768 F.3d 1110, 1122 (11th Cir. 2014); see also Higgens v. Trident Asset Mgmt., LLC, 2017 WL
2628404, at *2 (S.D. Fla. June 16, 2017) (Scola, J.) (citing cases for the proposition that “medical
expenses are categorized as consumer debts for pleading purposes”). And at least one Florida appellate
court has agreed that a patient’s unpaid medical expenses also constituted a “consumer debt” under the
Consumer Act. See Steiner & Munach, P.A. v. Williams, 334 So. 2d 39, 41–42 (Fla. 3d DCA 1976)
(holding that “the defendant’s conduct clearly [was] in violation of [the Consumer Act]” because it
was trying to collect a $176.00 debt for “anesthesia during surgery”). But our question—viz., whether
a purported debt owed by an insurance company to a medical provider (or, in this case, its assignee)
qualifies as “consumer debt”—is somewhat different.
To answer this question, we start (as always) with the text of the Consumer Act. See Lawson v.
FMR LLC, 571 U.S. 429, 440 (2014) (“In determining the meaning of a statutory provision, ‘we look
first to its language, giving the words used their ordinary meaning.’” (quoting Moskal v. United States,
498 U.S. 103, 108 (1990))). In doing so, we must be mindful to “give meaning to every word and
clause in a statute” and to reject any interpretation “that would render portions of a statute
surplusage.” Bhd. of Locomotive Eng’rs & Trainmen v. CSX Transp., Inc., 522 F.3d 1190, 1195 (11th Cir.
2008). Fortunately, the Consumer Act is pellucid: A “consumer debt” is “any obligation or alleged
obligation of a consumer to pay money arising out of a transaction[.]” FLA. STAT. § 559.55(6) (emphasis
added). And “consumer” is defined as “any natural person obligated or allegedly obligated to pay any
debt.” Id. § 559.55(8) (emphasis added). It goes without saying that a large insurance company like
UHC isn’t a “natural person” and that, therefore, its debts aren’t “consumer debts” under this law. Cf.
Yacht Assist, Inc. v. CRP LMC PROP Co., LLC, 353 So. 3d 65, 67 (Fla. 4th DCA 2022) (“Plaintiff is a
corporate entity and not a natural person.”); cf., e.g., Reyes v. Julia Place Condo. Homeowners Ass’n Inc., 2015
WL 4619928, at *4 (E.D. La. July 29, 2015) (“However, as defendants correctly observed, ‘consumer
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debts’, [under the FDCPA], may only be held by natural persons. . . . To be sure, past-due
condominium assessments would yield a cognizable claim under the FDCPA if the party who had
incurred them were a ‘natural person.’ The mere fact that past-due condominium assessments qualify
as ‘consumer debts’ in the abstract may not abrogate the plain fact that these five corporate claimants
fail to meet the initial and most fundamental requirement for recovery under the FDCPA: that they
be ‘consumers’ as defined by the Act and, thus, ‘natural persons.’”).
Trying to parry, UHC insists that HAMOC is trying to collect a consumer debt because “the
underlying medical debt that it solicited and obtained from the [Providers]” derives from “medical
services . . . provided directly to [the] patients.” Reply at 8. In other words, UHC is saying that the true
debtors in this case (for Consumer Act purposes) are the individual patients who received medical
treatment from the Providers. But HAMOC isn’t trying to collect from the patients; it’s trying to
collect from UHC. HAMOC alleges that the debt it’s owed derives from a purported oral agreement
through which UHC agreed to reimburse the Providers at the UCR rate. See Complaint ¶ 433 (“As a
further direct, legal and proximate result of [the Providers’] detrimental reliance on the oral agreement
and the misrepresentations of [UHC]. [The Providers have] been damaged due to the loss of monies
expended in providing said medical services for which it was significantly underpaid[.]”). What
HAMOC never says is that the patients are indebted to UHC, the Providers, HAMOC, or anybody else.
Put another way, any debt the patients might owe is utterly irrelevant to this action because HAMOC
is trying to collect a specific debt UHC allegedly owes the Providers for the services the medical
professionals provided to their insureds—nothing more, nothing less. See Antoine v. State Farm Mut.
Auto. Ins. Co., 662 F. Supp. 2d 1318, 1326 (M.D. Fla. 2009) (Melton, J.) (“Merely because an insurance
policy purchased by a consumer is involved in the case does not render any debt resulting thereunder
a consumer debt [under the Consumer Act].”); see also, e.g., Valhalla Inv. Props., LLC v. 502, LLC, 832
F. App’x 413, 415 (6th Cir. 2020) (Thapar, J.) (“Valhalla tries to redefine the relevant payment
9
obligation to squeeze a natural person into the picture. The First Bank obligation was part of a larger
set of transactions, it says, and one of those transactions was the agreement that Flex Yield’s members
would pay back their respective member advances to Flex Yield. But the defendants never tried to
collect money from Hood or Kantz (natural persons) to satisfy their obligations to Flex Yield. Instead,
the defendants bought First Bank’s right to repayment, secured title to the condominium, and
facilitated foreclosure. All of this was part of an attempt to collect payment on Flex Yield's obligation
to First Bank. No natural person, no FDCPA protection.”).
And the Commercial Act likewise doesn’t apply to HAMOC. That statute governs collection
agencies that are “in the business of soliciting [or collecting] commercial claims[.]” FLA. STAT. §
559.543(2). A “commercial claim” is defined as “any obligation for the payment of money or its
equivalent arising out of a transaction wherein credit has been offered or extended to any person, and
the money, property, or service which was the subject of the transaction was primarily for commercial
purposes and not primarily for personal, family, or household purposes[.]” Id. § 559.543(1). As far as
we can tell, no court—state or federal—has had occasion to decide whether a health insurance
company’s debt constitutes a “commercial claim” under this Florida law.
Again, however, we agree with HAMOC that, under the plain language of the statute, UHC’s
alleged debt isn’t a “commercial claim” because it has nothing to do with a commercial transaction.
As we’ve discussed, medical debt is a consumer debt (as defined by the Consumer Act) because it’s an
obligation to “pay money arising out of a transaction . . . for personal, family, or household
purposes[.]” FLA. STAT. § 559.55(6); see also ante, at 7–9. But, since medical debt is “primarily for
personal, family, or household purposes,” it cannot be a “commercial claim” under the Commercial
Act. FLA. STAT. § 559.543(1). Since UHC’s debt isn’t commercial, HAMOC didn’t need to register
under the Commercial Act before trying to collect it.
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Because HAMOC didn’t need to register with the State of Florida before bringing this action
under either the Consumer Act or the Commercial Act, we DENY this first part of the Motion.
II.
The Complaint is Indefinite as to Count 3
UHC next argues that HAMOC’s Complaint is “too indefinite to support any of its causes of
action.” Motion at 8. As to Counts 1 and 2, UHC says that “HAMOC never alleges that [UHC] relayed
that it would allow or pay for a specific amount,” and that portions of the Complaint “demonstrate[ ]
that the Providers already knew [UHC] would not be allowing or paying their interpretation of ‘usual,
customary, reasonable, and allowed’ in numerous situations.” Id. at 9–10. As to Count 3, UHC insists
that HAMOC cannot state a viable claim under ERISA because HAMOC “admits that it does not
have the health plans which allegedly cover the services at-issue. It is therefore not possible for
HAMOC to allege that [UHC] did not administer the at-issue services in accordance with the health
plan documents[.]” Id. at 11. We find that Counts 1 and 2 have been properly pled, but that Count 3
should be dismissed without prejudice and with leave to amend.
First, HAMOC has sufficiently alleged that UHC told the Providers that it would pay them a
certain amount of money for each procedure and that UHC then reneged on those promises. For each
patient, HAMOC alleges that a UHC representative told the Providers that UHC would “pay[ ] the
UCR rate,” even though UHC then reimbursed the Providers at the lower “Medicare rate.” Complaint
¶¶ 41, 49; see also id. ¶¶ 74, 106, 138, 170, 202, 234, 266, 298, 330, 362, 394 (same). UHC contends that
these allegations aren’t good enough because the UCR rate “is not some definite term, but rather is
plan-specific and varies.” Motion at 9. “[B]ecause there is no allegation of any misrepresentation or
promise to pay a specific amount,” UHC says, “HAMOC (or the Providers) could not justifiably or
reasonably rely on an alleged statement that [UHC] would pay or allow a [UCR rate].” Id. at 10.
It’s true that the UCR rate doesn’t refer to a specific price because—by definition—the UCR
is based on “[t]he amount paid for a medical service in a geographic area based on what providers in
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the area usually charge for the same or similar medical service.” Complaint ¶ 20; see also Urology Ctr. Of
Ga., 2010 WL 797204, at *1 (same). But this variability doesn’t mean that the UCR rate is some
unknowable figure UHC has no hope of uncovering. HAMOC alleges that UHC itself “uses the term
UCR in its policies” and “will utilize a medical bill database . . . to determine the exact dollar amount
to be paid for a medical claim.” Complaint ¶¶ 23–24. According to HAMOC, in other words, the
UCR rate is “an objective payment rate established through an industry database known as Fair
Health,” and (HAMOC avers) UHC knows precisely what the UCR rate is for any given procedure at
any given time in any given location because UHC uses the UCR rate in its own insurance policies.
Response at 13.
Plus, HAMOC continues, the UCR rate is a commonly understood term in the health
insurance field. See Complaint ¶ 19 (“Rather than use the words market rate to simplify terms, payors
have long used words or combinations of words such as usual, reasonable, customary and allowed, all
to mean an average payment for a procedure provided by similarly situated medical providers within
similarly situated areas or places of practice (‘UCR’).”). And that seems right. See, e.g., In re Managed
Care Litigation, 2011 WL 1595153, at *8 (S.D. Fla. Mar. 31, 2011) (Torres, Mag. J.) (“We conclude,
then, that Plaintiffs have sufficiently stated a claim for breach of contract based on the allegations that
Defendant elected to reimburse Plaintiffs pursuant to the UCR method but instead underpaid them.”);
Brand Surgical Inst. v. Aetna Life Ins. Co., 2022 WL 2046205, at *6–7 (C.D. Cal. Mar. 7, 2022) (“Defendant
disputes that a promise to pay at the UCR rate, as alleged by Plaintiff, could have been a clear and
unambiguous promise, since . . . [the] UCR is a variable term which could be defined by various
sources. However, Plaintiff alleges that Defendant itself uses the term ‘UCR’ in its policies and that
entities who use this term in their policies are known to rely on a common database, the ‘Fair Health
database,’ to calculate the exact dollar amount that will be paid. Moreover, as noted above, the Ninth
Circuit has clearly defined this term and relied on it in its decisions. . . . Accepting [the plaintiff’s]
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particular allegations as true, it is clear that Defendant’s use of the term ‘UCR rate’ is sufficiently clear
and unambiguous.” (cleaned up & citing Delta Dental Plan of Cal., Inc. v. Mendoza, 139 F.3d 1289, 1291
(9th Cir. 1998))). 6
In any event, the Complaint plainly alleges that UHC promised to pay at the UCR rate, that it
ultimately paid only at the Medicare rate, and that the Medicare rate is lower than the UCR rate. See
Complaint ¶¶ 422–23 (“Defendant falsely represented to Medical Providers that payment for services
would be based on UCR and not Medicare. Defendant knew that any payment made to Medical
Providers would not be made [at] the UCR rate and would instead be made at the Medicare rate.”); see
also, e.g., id. ¶ 68 (“The amount paid was well below the billed amount and well below the UCR amount
represented during the separate oral communications between [the Providers] and Defendant.”).
HAMOC has thus plausibly alleged that UHC owes it some amount of money, and we won’t dismiss a
complaint simply because the Plaintiff hasn’t, at this very early stage of the litigation, computed the
full amount of its damages with exactitude. See Nat’l Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1548
(11th Cir. 1986) (“Florida law does not require exactitude where it is certain that substantial damage
has been caused; a reasonable basis in the evidence for the computation will suffice.”); Royal Typewriter
Co. v. Xenographic Supplies Corp., 719 F.2d 1092, 1105 (11th Cir. 1983) (“[The plaintiff] need not show
UHC relies on two cases—Hapeville Dialysis Center v. City of Atlanta, Ga., 545 F. App’x 870 (11th Cir.
2013), and Krauss v. Oxford Health Plans, Inc., 517 F.3d 614 (2d Cir. 2008)—for the proposition that
HAMOC cannot allege a “misrepresentation or promise to pay a specific amount” because UCR rates
“[are] not some definite term, but rather [are] plan-specific and var[y],” Motion at 9–10. We fail to see
the relevance of these cases because their discussion of UCR rates is far too cursory for us to draw
any meaningful parallels with our case. See, e.g., Hapeville Dialysis, 545 F. App’x at 873 (“The provisions
of the summary plan description make it unambiguously clear that plaintiff is an out-of-network
provider whom the Plan provisions provide will be paid the Plan’s Usual, Customary, and Reasonable
Fees or reimbursed at the Plan’s Default Reimbursement Rate.”); Krauss, 517 F.3d at 623 (“Moreover,
Oxford’s UCR definition, which provides that the UCR charge is the lesser of the amount charged or
the amount Oxford determines to be the reasonable charge, confers upon Oxford discretionary
authority regarding one of the Plan terms here at issue: UCR charges.” (cleaned up)).
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the precise amount of damages so long as the trier of fact can arrive at an intelligent estimate without
speculation or conjecture.”).
Second, the Complaint isn’t “inconsistent” about whether the Providers “were on notice that
the reimbursement rates allowed or paid by [UHC] were below what the Providers were seeking.”
Motion at 10. UHC says that the Providers must have been on notice that UHC wasn’t reimbursing at
the UCR rate because UHC had already underpaid the Providers for other patients. See Motion at 10
(“Hollywood Regional treated patient DC in February 2019 and submitted a health claim for medical
code s2900, and then treated patient AS in December 2019 and submitted a health claim also for
medical code s2900. HAMOC’s allegation therefore that Hollywood Regional sincerely relied on any
statements from [UHC] in December 2019 after already purportedly receiving an ‘underpayment’ on
the very same code is at best inconsistent and cannot support either causes of action for negligent
misrepresentation or promissory estoppel.”).
But HAMOC alleges that, for each patient, the Providers contacted UHC in advance to ask
about UHC’s reimbursement practices, and that, as to each patient, UHC assured the Providers that
it “pays the UCR rate.” Complaint ¶ 42; see also id. ¶¶ 74, 106, 138, 170, 202, 234, 266, 298, 330, 362,
394 (same). Taking these allegations “as true and [viewing] them in the light most favorable to
[HAMOC],” Dusek, 832 F.3d at 1246, we cannot say that the Providers were under some bizarre
obligation to disregard UHC’s own representations simply because the insurer had underpaid the
Providers on some other debts. UHC seems to be saying, in other words, that the Providers shouldn’t
have trusted it to tell the truth in any given case because UHC had already proven itself to be
untrustworthy in other cases. But we won’t let a defendant off the hook on a misrepresentation claim
on the argument—which it will be free to make to a jury if it can do so with a straight face—that the
Providers shouldn’t have been surprised by its duplicity because it always (or often) behaves
duplicitously.
14
But third, UHC is right that it isn’t “possible for HAMOC to allege that [UHC] did not
administer the at-issue services in accordance with the health plan documents” because HAMOC
never identifies what provision of the alleged ERISA plans were violated. Motion at 11. Our District’s
cases are clear that “[a] plaintiff who brings a claim for benefits under ERISA must identify a specific
plan term that confers the benefit in question.” Sanctuary Surgical Ctr., Inc. v. UnitedHealth Grp., Inc., 2013
WL 149356, at *3 (S.D. Fla. Jan. 14, 2013) (Hurley, J.) (emphasis added) (quoting Stewart v. Nat’l Educ.
Ass’n, 404 F. Supp. 2d 122, 130 (D.D.C. 2005)); see also, e.g., H.H. v. Aetna Ins. Co., 342 F. Supp. 3d
1311, 1316 (S.D. Fla. 2018) (Middlebrooks, J.) (“To state a plausible claim under ERISA, then, a
plaintiff must provide the court with enough factual information to determine whether the services
were indeed covered services under the plan. A plaintiff must identify a specific term of the plan that
covers the services at issue and must provide facts sufficient to show that the services meet whatever
requirements the plan imposes for coverage.” (cleaned up)); In re Managed Care Litigation, 2009 WL
742678, at *3 (S.D. Fla. Mar. 20, 2009) (Moreno, C.J.) (“Furthermore, the failure to properly allege the
existence of an ERISA plan also makes it impossible for Plaintiffs to sufficiently allege the basis of
Defendants’ liability under a given plan.”); Columna, Inc. v. UnitedHealthcare Ins. Co., 2019 WL 2076796,
at *3 (S.D. Fla. Apr. 29, 2019) (Dimitrouleas, J.) (“In order to provide Defendants with notice of the
claims against them, Plaintiff must ‘at least identify the specific plan provisions under which coverage
is conferred’ with respect to each of the ERISA claims in the Complaint and ‘allege sufficient facts to
plausibly show the services rendered to each patient were indeed covered under that particular plan.’”
(quoting Sanctuary Surgical Ctr., 2013 WL 149356, at *3)).
HAMOC says only that “each Patient’s health plan at issue in this litigation is a health plan
governed by [ERISA],” Complaint ¶ 28, and that, “under the terms of the Patient’s ERISA Plan,
Defendant is obligated to pay based on [the Provider’s] billed amount,” id. ¶ 62. That isn’t good
enough. To bring a claim under ERISA, HAMOC must (1) “identify a specific plan term that confers
15
the benefit in question” and (2) “provide . . . enough factual information to determine whether the
services were indeed covered services under the plan[.]” Sanctuary Surgical Ctr., 2013 WL 149356, at *3.
Since HAMOC hasn’t done either, see generally Complaint, Count 3 is improperly pled and must be
dismissed.
Although Counts 1 and 2 of HAMOC’s Complaint are sufficiently detailed and otherwise
comply with Rule 8’s pleading standards, Count 3 fails to state a claim under ERISA. We’ll therefore
DISMISS Count 3 of the Complaint without prejudice and with leave to amend—but DENY this portion
of the Motion as it relates to Counts 1 and 2.
III.
ERISA Doesn’t Preempt HAMOC’s Claims
UHC also contends that ERISA “preempts HAMOC’s claims of negligent misrepresentation
and promissory estoppel” (as alleged in Counts 1 and 2 of the Complaint). Motion at 11. According
to UHC, HAMOC’s claim that “payment [should have been] made at a ‘UCR rate’ and not a ‘Medicare
rate’” is unavoidably linked with “how the ERISA health plan was administered and what was
allowed[.]” Id. at 13. In UHC’s view, then, HAMOC’s state-law claims “‘relate to’ an ERISA plan and
are defensively preempted.” Ibid. HAMOC advances two counterarguments. One, HAMOC says that
its claims are not “related to an ERISA plan” but instead “arise out of independent wrongful conduct
it alleges the Defendant engaged in.” Response at 14 (cleaned up). Two, HAMOC maintains that
challenges “to the ‘rate of payment’” are “not preempted, because [they] do not fall within the scope
of ERISA.” Id. at 16 (cleaned up).
“A major component of ERISA—designed to help effectuate its broad and comprehensive
scope—is its preemption provision, which ‘supersede[s] any and all State laws insofar as they may now
or hereafter relate to any employment benefit plan covered by ERISA.’ ERISA’s preemption clause
‘is conspicuous for its breadth’ and must be ‘expansively applied’ to conclusively preempt ‘all state
laws that relate to ERISA covered plans.’” Vanguard Plastic Surgery, PLLC v. UnitedHealthcare Ins. Co.,
16
658 F. Supp. 3d 1250, 1255–56 (S.D. Fla. 2023) (Altman, J.) (first quoting Egelhoff v. Egelhoff ex rel.
Breiner, 532 U.S. 141, 147 (2001); and then quoting Swerhun v. Guardian Life Ins. Co. of Am., 979 F.2d
195, 197 (11th Cir. 1992)). “ERISA is one of only a few federal statutes under which two types of
preemption may arise: conflict [or defensive] preemption and complete preemption.” Conn. State Dental
Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009). Defensive preemption “arises
from ERISA’s express preemption provision” and “preempts any state law claim that ‘relates to’ an
ERISA plan.” Id. at 1344 (quoting 29 U.S.C. § 1144(a)). Complete preemption is “jurisdictional in
nature” and “converts an ordinary state common law complaint into one stating a federal claim for
purposes of the well-pleaded complaint rule.” Ibid. (quoting Metro Life Ins. Co. v. Taylor, 481 U.S. 58,
65–66 (1987)). “[C]omplete and defensive preemption are not coextensive,” since a “state-law claim
may be defensively preempted . . . but not completely preempted[.]” Ibid. (quoting Cotton v. Mass. Mut.
Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005)). UHC argues that Counts 1 and 2 are defensively
preempted. See Motion at 13 (“[A]ccepting HAMOC’s allegations in the Complaint as true, the causes
of action alleged by HAMOC ‘relate to’ an ERISA plan and are defensively preempted.”).
We’ll start by rejecting HAMOC’s second counterargument. HAMOC has identified a line of
cases holding that, “[f]or purposes of determining ERISA preemption, a challenge to the ‘rate of
payment’ does not necessarily implicate an ERISA plan, but a challenge to the ‘right to payment’ under
an ERISA plan does.” Response at 16 (quoting Surgery Ctr. of Viera, LLC v. Meritain Health, Inc., 2020
WL 7389987, at *8 (M.D. Fla. June 1, 2020) (Hoffman, Mag. J.), report and recommendation adopted, 2020
WL 7389447 (M.D. Fla. June 16, 2020) (Byron, J.)). But, as UHC points out (Reply at 10), this
distinction applies only to claims of complete preemption—and not, as here, to claims of defensive preemption.
See, e.g., Premier Inpatient Partners LLC v. Aetna Health & Life Ins. Co., 371 F. Supp. 3d 1056, 1066 (M.D.
Fla. 2019) (Scriven, J.) (“[T]o determine whether removal under § 1441 was proper based on ERISA
[complete] preemption . . . . resolution of the ‘rate of payment’ and ‘right of payment’ distinction is
17
dispositive of whether a claimant could have brought its claim under ERISA.” (cleaned up) (quoting
Conn. State Dental Ass’n, 591 F.3d at 1350); Surgery Ctr. of Viera, LLC v. Cigna Health, 2020 WL 4227428,
at *2 (M.D. Fla. July 23, 2020) (Dalton, J.) (“True—recent case law has established the rate/right
distinction, but only in complete preemption cases where the issue was subject matter jurisdiction.”);
Worldwide Aircraft Servs. Inc. v. Worldwide Ins. Servs., LLC, 2024 WL 4416825, at *5 (M.D. Fla. Oct. 4,
2024) (Jung, J.) (rejecting a claim of complete preemption where the “Plaintiff’s Complaint [wa]s only
raising a rate of payment challenge”). HAMOC’s “rate of payment” cases, in other words, are totally
inapposite here.
Even so, we disagree with UHC that HAMOC’s state-law claims necessarily “relate to” an
ERISA plan. Counts 1 and 2 of the Complaint allege that UHC misrepresented what it would pay the
Providers for certain medical services. See Complaint ¶ 422 (“Defendant falsely represented to Medical
Providers that payment for services would be based on UCR and not Medicare.”); id. ¶¶ 429–30
(“Medical Providers only decided to provide services because they were assured that payment would
be made at the UCR rate not based on Medicare. After assuring and promising Medical Providers that
payment would be at the UCR rate, Defendant should have reasonably expected that Medical
Providers would then go on to provide medical services expecting that payment would be made at
that rate.”). And UHC’s (alleged) obligation to pay the Providers a given UCR rate for their services
arises not from the terms of an ERISA plan but from oral agreements between UHC and the Providers.
See, e.g., id. ¶ 42 (“Defendant represented to HRSC that for services in connection with these procedure
codes, Defendant pays the UCR rate.”). 7
Although HAMOC never says so explicitly, the Complaint seems clear that the Providers didn’t have
any other contractual relationship with UHC—much less an agreement based on an ERISA plan—
when they agreed to perform medical services for the patients named in the Complaint. See Complaint
¶¶ 16–19 (“[W]hen a medical provider does not have a written contract or preferred provider
agreement with a health plan, the medical provider receives no referrals from the health plan. . . . The
reason why medical providers have chosen to forgo the benefits of a contract with a payor is that, in
7
18
As we’ve explained in another case, “the ‘mere fact’ that [the Providers] treated a patient who
happens to have an ERISA plan doesn’t mean that every legal issue concerning that treatment is now
‘related’ to that plan.” Vanguard Plastic Surgery, 658 F. Supp. 3d at 1258 (quoting Sarasota Cnty. Pub.
Hosp. Bd. v. Blue Cross & Blue Shield of Fla., Inc., 511 F. Supp. 3d 1240, 1249 (M.D. Fla. 2021) (Merryday,
J.)). Both the Eleventh Circuit and district courts within the Circuit have consistently held that statelaw claims premised on an insurance company’s failure to fully reimburse a medical provider are not
preempted by ERISA—provided that the duty to pay the medical provider doesn’t arise from the
terms of an ERISA plan. See Lordmann Enters., Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir. 1994)
(“Congress enacted ERISA to protect the interests of employees and beneficiaries covered by benefit
plans. Preemption in a third-party health care provider case would defeat rather than promote this
goal. The commercial realities of the health care industry require that health care providers be able to
rely on insurers’ representations as to coverage. If ERISA preempts their potential causes of action
for misrepresentation, health care providers can no longer rely as freely and must either deny care or
raise fees to protect themselves against the risk of noncoverage.” (cleaned up)); S. Broward Hosp. Dist.
v. ELAP Servs., LLC, 2020 WL 7074645, at *9 (S.D. Fla. Dec. 3, 2020) (Singhal, J.) (“[T]he District is
not seeking payment under the ERISA Plans. In fact—and as discussed above—the ERISA Plans at
issue in this action do not have such contracts with the District for pre-negotiated reimbursement rates.
. . . The District does not ask the Court to interpret or rely on any provision of an ERISA plan
whatsoever. Its claims are premised on misrepresentations and omissions by Defendants, not pre-
recent years, many insurers . . . contracted rates for in-network providers have been so meager, onesided and onerous, that many providers have determined that they cannot afford to enter into such
contracts. As a result, a growing number of medical providers have become noncontracted or out of
network providers. Payors and insurers still want their patients to be seen and so they commonly
promise to pay out of network providers a percentage of the market rate for the procedure, also
described as, an average payment for the procedure performed or provided by similarly situated
medical providers within similarly situated areas or places of practice.”).
19
approval to perform medical services based on the plans.”); Surgery Ctr. of Viera, LLC v.
UnitedHealthcare, Inc., 465 F. Supp. 3d 1211, 1223 (M.D. Fla. 2020) (Conway, J.) (“In the cases in which
individual employees or physicians brought state law claims to recover for medical services, the
plaintiffs were either parties to the ERISA plans or sought to enforce terms of the ERISA plans and,
accordingly, Congress created uniform federal causes of action for their recovery under the ERISA
statute. In cases such as Surgery Center’s, in which the Plaintiff is an out-of-network or ‘nonparticipating’ healthcare provider and not seeking payment under the Plan, the state law claims do not
‘relate to’ the ERISA plan.”); see also Vanguard Plastic Surgery, 658 F. Supp. 3d at 1259 (citing additional
cases).
In the face of all this, UHC offers two arguments—both unpersuasive. First, UHC cites Griffin
v. Coca-Cola Refreshments USA, Inc., 989 F.3d 923 (11th Cir. 2021), for its view that HAMOC’s claims
impermissibly “seek to modify the ERISA plan by imposing additional legal obligations upon” UHC.
Motion at 14. But HAMOC is doing nothing of the sort. As we’ve just discussed, UHC’s alleged
obligation to pay the Providers arises from (alleged) oral agreements between UHC and the Providers.
See Response at 18 (“Defendant tries to argue around the Plaintiff’s negligent misrepresentation and
promissory estoppel State Law Causes of Action, by first recasting them as modifications of the Plans
and then attacking this strawman of its own making. . . . [A]s a factual matter, Plaintiff’s State Law
Causes of Action are based on Defendant’s oral representations without regard to what is, or is not,
contained in any Plan. These representations and promises vested the Medical Providers with rights
to payment separate and apart from any Plan terms.”). The terms of the patients’ ERISA plans are
thus totally irrelevant to Counts 1 and 2. 8 In any event, the portion of Griffin UHC relies on is irrelevant
Of course, HAMOC’s argument calls into question the viability of Count 3—which alleges that the
Providers and HAMOC are entitled to “recover benefits and enforce rights to benefits under
[ERISA].” Complaint ¶ 438. But, at this stage of the proceedings, HAMOC may “state as many
separate claims or defenses as it has, regardless of consistency.” FED. R. CIV. P. 8(d)(3).
8
20
for the separate reason that, in it, the Circuit was telling us when an ERISA plan’s anti-assignment
provisions are subject to equitable estoppel. See 989 F.3d at 936 (“Griffin argues that Defendants are
equitably estopped from relying on the anti-assignment provisions . . . . In the ERISA context,
equitable estoppel applies when the plaintiff can show that (1) the relevant provisions of the plan at
issue are ambiguous, and (2) the plan provider or administrator has made representations to the
plaintiff that constitute an informal interpretation of ambiguity.” (cleaned up)). Whether the patients’
ERISA plans have an enforceable anti-assignment provision is, again, totally irrelevant to the existence
of the oral agreements between UHC and the Providers.
Second, UHC contends that the Eleventh Circuit’s decision in Lordmann Enterprises doesn’t apply
to our case both because it’s “distinguishable” and because “subsequent case law held that the exact
types of causes of action HAMOC attempts to plead . . . are preempted.” Motion at 14. This is also
wrong. The Eleventh Circuit held in Lordmann Enterprises that “ERISA does not preempt a health care
provider’s [state-law] negligent misrepresentation claim against an insurer under an ERISA plan”
because “a health care provider’s claim against a provider of insurance under the plan affects the
relationship between the principal ERISA entities at best only indirectly.” 32 F.3d at 1533–34. That
seems pretty much on all-fours with our case, where a medical provider’s assignee (HAMOC) is
asserting state negligent-misrepresentation and promissory-estoppel claims against an insurance
company for failing to reimburse the Providers at an agreed-upon rate—a rate the parties arrived at
in oral communications.
And none of UHC’s cases abrogated or otherwise called into question Lordmann Enterprises’
holding or its obvious applicability to our facts. In Variety Children’s Hospital, Inc. v. Century Medical
Health Plan, Inc., 57 F.3d 1040 (11th Cir. 1995), for example, the Eleventh Circuit found that “claims
of fraud and misrepresentation [that] are based upon the failure of a covered plan to pay benefits” are
preempted by ERISA. Id. at 1042. But the court quickly clarified (citing to Lordmann Enterprises) that a
21
claim of promissory estoppel wouldn’t be preempted “where an insurer represents to the health care
provider that a specific treatment is fully covered under the policy and only after . . . informs the
provider that the policy contains a significant limitation on that coverage.” Id. at 1043 n.5. Our case
(like Lordmann Enterprises) is about payment—not coverage—so Variety Children simply doesn’t apply
here.
The Eleventh Circuit’s decision in Garren v. John Hancock Mutual Life Insurance Co., 114 F.3d 186
(11th Cir. 1997), is equally inapposite, since it involved a challenge by the beneficiary of an ERISA plan
against the denial of coverage. See id. at 187 (“Plaintiff, Curtis Garren, appeals the dismissal of this
action under [ERISA], in which he alleged his employment benefit plan wrongfully denied his son’s
medical claims.”). Our case (it goes without saying) isn’t about the denial of coverage, and neither the
Providers nor HAMOC were parties to (or beneficiaries of) any ERISA plan.
Our Circuit’s precedents are thus clear that an underpaid health care provider’s state-law fraud
and misrepresentation claims against a health insurance company aren’t preempted by ERISA. We
therefore DENY this third part of UHC’s Motion.
IV.
The Anti-Assignment Argument is Premature
UHC’s final argument is that its ERISA plans “often contain unambiguous anti-assignment
provisions,” which will “serve as a bar to HAMOC pursuing any relief under any cause of action from
[UHC].” Motion at 16. Conceding, however, that this argument is premature, UHC asks us to “reserve
ruling on the application of the anti-assignment provisions in plan documents while additional facts
develop and HAMOC provides details permitting identification of the Members, the applicable plan
documents[,] and the health services and health claims at issue.” Ibid.; see also Reply at 11 (“[I]f the
Court does not grant its Motion to Dismiss on the grounds explained above and in the Motion to
Dismiss, [UHC] requests the Court reserve on the portion relating to the anti-assignment clauses.”).
We won’t be doing that. See World Fuel Servs., Inc. v. First Serv. Bank, 2024 WL 3673018, at *6 (S.D. Fla.
22
Aug. 6, 2024) (Altman, J.) (explaining that district courts have “broad discretion in deciding how to
best manage the cases before [them],” including the “discretion to stay proceedings as an incident to
[the courts’] power to control [their] own docket[s]” (first quoting Chudasama v. Mazda Motor Corp.,
123 F.3d 1353, 1366 (11th Cir. 1997); and then quoting Clinton v. Jones, 520 U.S. 681, 683 (1997))).
We will, however, allow UHC to raise this anti-assignment argument later—either in a motion
for judgment on the pleadings or at summary judgment. Cf. Chen v. Cayman Arts, Inc., 2011 WL
1085646, at *2 (S.D. Fla. Mar. 21, 2011) (Cohn, J.) (“[A] party may raise certain defenses (failure to
state a claim, failure to join a person required by Rule 19(b), or a legal defense to a claim) after an
initial Rule 12 motion to dismiss. . . in a Rule 12(c) motion[.]” (citing FED. R. CIV. P. 12(h))). For now,
though, since UHC hasn’t shown that HAMOC’s claims are barred by an anti-assignment provision,
we DENY this final part of the Motion to Dismiss.
CONCLUSION
After careful review, we ORDER and ADJUDGE as follows:
1. The Defendant’s Motion to Dismiss [ECF No. 19] is GRANTED in PART and DENIED
in PART. Count 3 of the Complaint is DISMISSED without prejudice. All other aspects
of the Motion to Dismiss are DENIED.
2. The Plaintiff may file an amended complaint by November 6, 2024.
3. By October 31, 2024, the parties shall file an amended joint scheduling report, as required
by S.D. FLA. L.R. 16.1(b)(2).
4. The Clerk shall LIFT the stay and REOPEN this case.
DONE AND ORDERED in the Southern District of Florida on October 22, 2024.
cc:
_________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
counsel of record
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