Eberhart v. Blue Cross Blue Shield of Kansas et al

Filing 28

MEMORANDUM AND ORDER granting 20 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Julie A. Robinson on 2/14/2013.Mailed to pro se party Rene Frances Eberhart, PO Box 4301, Topeka, KS 66604 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RENE FRANCES EBERHART,

)
)
Plaintiff,
)
v.
)
)
BLUE CROSS AND BLUE SHIELD OF
)
KANSAS, and THE RAWLINGS COMPANY, )
L.L.C.,
)
)
Defendants.
)
_________________________________________ )

Case No. 12-4151-JAR-JPO

MEMORANDUM AND ORDER
Plaintiff filed a Limited Action Petition in the District Court of Shawnee County, Kansas,
on October 18, 2012. Her form Petition alleges that she was denied payment of $3999.94 from a
claim settlement by a third party subrogator, The Rawlings Company, L.L.C. (“Rawlings”), that
was improperly held by Blue Cross Blue Shield of Kansas (“BCBS”). Defendants removed this
action on November 19 and filed a Motion to Dismiss (Doc. 20) on December 28. Plaintiff filed
an Amended Petition on January 15, 2013, and responded twice to the motion to dismiss. In the
Amended Petition, Plaintiff expands on the allegations in the form Petition, seeking $2745.67 in
an overpayment from her automobile insurance carrier to Blue Cross, which she appears to claim
should have been paid to her instead of to either Blue Cross or Rawlings. Defendants move to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be
granted. As explained more fully below, Defendants’ motion is granted.
I.

Legal Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed to

be true, that “raise a right to relief above the speculative level” and must contain “enough facts to

state a claim to relief that is plausible on its face.”1 Under this standard, “the complaint must
give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.”2 The plausibility standard does not require a showing of probability
that “a defendant has acted unlawfully,”3 but requires more than “a sheer possibility.”4
The plausibility standard enunciated in Bell Atlantic v. Twombly, seeks a middle ground
between heightened fact pleading and “allowing complaints that are no more than ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’ which the Court
stated ‘will not do.’”5 Twombly does not change other principles, such as that a court must accept
all factual allegations as true and may not dismiss on the ground that it appears unlikely the
allegations can be proven.6 “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”7
Because Plaintiff is a pro se litigant, the court must construe his pleadings liberally and
apply a less stringent standard than that which is applicable to attorneys.8 However, the court
may not provide additional factual allegations “to round out a plaintiff’s complaint or construct a

1

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

2

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

3

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4

Id.

5

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 555).

6

Id. (citing Twombly, 550 U.S. at 556).

7

Iqbal, 556 U.S. at 678.

8

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

2

legal theory on a plaintiff’s behalf.”9 The court need only accept as true the plaintiff’s “wellpleaded factual contentions, not his conclusory allegations.”10 Additionally, a pro se litigant is
not excused from complying with the rules of the court and is subject to the consequences of
noncompliance.11
II.

Discussion
In the Amended Petition, Plaintiff seeks relief under 29 U.S.C. § 1132(a) of ERISA in the

amount of funds that Defendants received “outside of the Plan Contract,” and alleges that she
was denied requests for documents. Under § 1332(a)(1)(B), a participant may bring a civil
action “to recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” A
participant may also file a civil action based on an “Administrator’s refusal to supply requested
information.”12
Plaintiff alleges in the Amended Petition that she was involved in an automobile accident
and that BCBS is the sponsor of an employee welfare benefit plan under ERISA that paid out
claims for this accident. Plaintiff further alleges that she was a participant covered by an
employee welfare benefit plan sponsored by BCBS. She alleges that BCBS is the plan sponsor
and that Rawlings is a “third party subrogator.” In her Amended Petition, Plaintiff alleges facts
against “Defendant,” “Blue Cross,” and “Rawlings.” When using the term “Defendant,” it is
9

Id.

10

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).

11

Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
12

29 U.S.C. § 1132(a)(1), (c).

3

unclear the defendant to which she refers. Liberally construing the Amended Petition, it appears
that she alleges BCBS overpaid Rawlings an amount that it retained as fees for the collection of
funds—fees for which Plaintiff alleges she is not responsible under a subrogation contract. She
disputes the subrogation amount collected by Rawlings from the plan related to the settlement of
her automobile accident claim.
But Plaintiff does not allege that benefits are due to her under the terms of her plan.
Instead, she appears to assert a claim on behalf of the plan or plan administrator challenging the
subrogation agreement, a claim for which she lacks standing. Moreover, Plaintiff’s allegations
are insufficient to determine the nature of the subrogation arrangement of which she complains.
She mentions a contract issued by the plan, but does not allege the identity of the parties to that
contract, or how it affects her benefits under the terms of the plan. Finally, the figures she
provides in the Amended Petition are inconsistent and fail to put the Court and Defendants on
notice of her claim. Accordingly, assuming as true the facts alleged in her pleadings, Plaintiff
fails to state a claim upon which relief can be granted under § 1132(a)(1)(B).
Liberally construing the Amended Petition, Plaintiff also alleges that BCBS, as a plan
sponsor, failed to provide her with certain documents that she requested. The Court construes
this as a claim under § 1132(c), which provides a remedy for plan participants when a plan
administrator fails to comply with a request for certain types of plan information. Plaintiff can
only recover under § 1132(c) against the plan administrator.13 While Plaintiff alleges that BCBS
is a plan sponsor, she does not allege that it is a plan administrator. BCBS, as the plan sponsor,
may only be the plan administrator under ERISA if the plan does not specifically designate a

13

See Spires v. Sunflower Elec. Co-op, Inc., 280 F. Supp. 2d 1271, 1278 n.4 (D. Kan. 2003).

4

different person in its operating instrument.14 Second, Plaintiff does not specifically identify the
documents that she requested, or when she requested them, but mentions copies of claim denials
and the subrogation agreement with Rawlings. Section 1132(c) is the enforcement mechanism
for §§ 1124 and 1125, which govern the plan administrator’s duty to provide plan benefit
statements, annual reports, summary plan descriptions, and contracts under which the plan was
established or is operated.15 Plaintiff’s Amended Petition does not allege which documents the
plan administrator was required to provide to her under ERISA that it failed to furnish.
In sum, the Court finds that the Amended Petition fails to meet the standards that apply
under Fed. R. Civ. P. 12(b)(6). The Court cannot find that there is a reasonable likelihood that
Plaintiff can muster factual support for ERISA claims brought under 29 U.S.C. § 1132.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 20) is granted.
Dated: February 14, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

14

29 U.S.C. § 1002(16)(A).

15

See McKinsey v. Sentry Ins., 986 F.2d 401, 403 (10th Cir. 1993).

5