FOLL v. PREFERRED HEALTH PLAN, INC.

Filing 13

ORDER granting Defendant's Renewed 11 Motion to Dismiss for Failure to State a Claim. (c/m). Signed by Judge Richard L. Young on 12/12/2013. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

JEREMY FOLL,
Plaintiff,
vs.
PREFERRED HEALTH PLAN, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

3:13-cv-00169-RLY-WGH

ORDER ON DEFENDANT’S RENEWED MOTION TO DISMISS
Plaintiff, Jeremy Foll, is a plan participant in the OFS Brands, Inc., Employee
Health Plan (the “Plan”). On June 17, 2013, he filed a Complaint against the Defendant,
Preferred Health Plan, Inc. (“PHP”), in Dubois County, Indiana, Superior Court, Small
Claims Division. Under the heading “Statement of Claim,” Plaintiff wrote “unpaid
hospital accounts turned into insurance.” PHP removed Plaintiff’s Complaint to this
court on August 21, 2013, on grounds that Plaintiff’s state law claim is preempted by the
Employment Retirement Income Security Act of 1974, as amended (“ERISA”).
On August 28, 2013, PHP filed a motion to dismiss for failure to state a claim on
two grounds: (1) PHP is not a fiduciary within the meaning of 29 U.S.C. § 1002(21)(A),
and thus, is not a proper party to this lawsuit; and (2) Plaintiff failed to submit a claim for
unpaid welfare benefits as required by the Plan, and therefore, failed to exhaust his
administrative remedies prior to filing suit. Plaintiff, who is proceeding pro se, did not

1

respond to this motion. Nevertheless, on October 7, 2013, the court denied the motion
because the Plan was not referenced in, nor attached to, Plaintiff’s Small Claims
Complaint, leaving Defendant’s motion unsubstantiated. The court also ordered the
Plaintiff to file an Amended Complaint, compliant with Rules 8(a)(2) and 10 of the
Federal Rules of Civil Procedure, to explicitly state the legal injury and provide a clear
statement of relief within thirty (30) days of the court’s Order.
On November 11, 2013, PHP filed a renewed motion to dismiss, with a copy of
the Plan attached as an exhibit. Plaintiff did not respond nor file an Amended Complaint
as ordered by the court. The court finds, given the record in this case and the Plaintiff’s
failure to comply with the court’s Order, that this action should be dismissed with
prejudice. Defendant’s Renewed Motion to Dismiss (Docket # 11) is therefore
GRANTED with prejudice.

SO ORDERED this 12th day of December 2013.

__________________________________
________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.
Distribution by first-clas U.S. Mail to:
Jeremy Foll
6170 N. Old Rd. 45
Jasper, IN 47546
2