Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al

Filing 230

ORDER AND REASONS granting in part and denying in part 171 Motion to Dismiss All Claims or, Alternatively, to Sever the Defendants and Order a More Definite Statement. Defendant's request for a more definite statement is granted while the rem ainder of the motion is denied, as stated herein. FURTHER ORDER dismissing as moot 170 Motion to Dismiss Case; 172 Motion to Dismiss All State Law Claims Concerning the Service Benefit Plan; 173 Motion to Dismiss Case; and 176 Motion to Dismiss Second Supplemented and Restated Complaint. Signed by Judge Susie Morgan on 9/30/2013. (tsf)

UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
CENTER FOR
RECONSTRUCTIVE BREAST
SURGERY, LLC., et al.
Plaintiffs

CIVIL ACTION

VERSUS

No. 11-806

BLUE CROSS BLUE SHIELD OF
LOUISIANA, et al.
Defendants

Section “E”

ORDER & REASONS
Before the Court is a motion to dismiss or in the alternative for a more definite
statement or to sever, filed by Defendant Blue Shield of Michigan.1 Plaintiffs oppose the
motion.2 For the following reasons the motion is GRANTED in part and DENIED in part.
Plaintiffs are a practice group of physicians and a specialty surgical center they own.
In their third amended complaint, they assert claims under ERISA and state law to the
reimbursement processes of twenty eight health insurance plans that have allegedly failed
to provide appropriate reimbursement for hundreds of their patients.3 But the complaint
groups all Defendants together and contains no specific allegations against a given health
insurance plan based on a given patient. Instead, Plaintiffs have simply made general
1

R. Doc. No. 171.

2

R. Doc. No. 183.

3

Although the motion to dismiss is directed to Plaintiffs’ second amended
complaint, the parties stipulated at the time Plaintiffs’ third amended
complaint was filed that there would be no need to re-brief the pending
motions because the third amended complaint merely added additional
patients.
1

allegations against all Defendants and attached a list of patients. This is insufficient under
well established law.
“To sufficiently plead its claims, Plaintiffs must establish the existence of the ERISA
plans under which they sue.” Sanctuary Surgical Centre, Inc. v. Connecticut Gen. Life Ins.
Co., 2012 WL 28263, at *3 (S.D. Fla. Jan. 5, 2012) (citing Advanced Rehab., LLC v.
UnitedHealth Group, Inc., 2011 WL 995960, at *2 (D.N.J. Mar. 17, 2011)). “A plan is
established if a reasonable person ‘can ascertain the intended benefits, a class of
beneficiaries, the source of financing and procedures for receiving benefits.’” Forest
Ambulatory Surgical Assocs., L.P. v. United Healthcare Ins. Co., 2011 WL 2749724, at *5
(N.D. Cal. July 13, 2011) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir.
1982)). “Having established the plan at issue, Plaintiffs must then identify the plan terms
Defendants have breached.” Sanctuary Surgical Centre, 2012 WL 28263, at *3. “[T]he
mere fact that [Plaintiffs] have yet to obtain the policies does not excuse them from this
pleading obligation.” Id. at *2 (citing In re Managed Care Litig., 2009 WL 742678, *3 (S.D.
Fla. 2009).
Plaintiffs’ third amended complaint does not satisfy these requirements. On the
most basic level, Plaintiffs fail to distinguish between the patients who were participants
in an ERISA covered plan and those who were not—a crucial distinction.4 The Court must
therefore decide whether to dismiss or require a more definite statement. Either would
seem to be acceptable, see, e.g., Sanctuary Surgical Centre, 2012 WL 28263, at *3

4

At least some patients apparently were in non-ERISA covered plans. R.
Doc. No. 223, ¶ 2 (“For those patients listed in the attached Exhibit 1 who
were neither participants nor beneficiaries under an ERISA plan during
the relevant period, Plaintiffs’ derivative causes of action do not apply.”).
2

(dismissing); Kindred Hospital East, LLC v. Blue Cross & Blue Shield of Fla., Inc., 2007 WL
601749, at *4 (M.D. Fla. Feb. 16, 2007) (sua sponte requiring Plaintiff to re-plead), and the
Court elects to require Plaintiffs to provide a more definite statement. “To comply with the
notice requirements of Rules 8 and 10, [Plaintiffs] shall separate by count each individual
claim, setting forth the patient (identified by initials); the specific insurance plan under
which plaintiff is proceeding and whether it is an ERISA-governed plan or not; the dates
of treatment at plaintiff's facility; the amount of alleged incurred charges; the amount of
charges allegedly remaining outstanding; and the amount of benefits sought on behalf of
that patient.” Kindred Hospital East, 2007 WL 601749, at *4. Additionally, for claims
based on plans governed by ERISA, Plaintiffs shall identify the specific plan terms allegedly
breached and the manner of their breach (so, for example, claims relating to denied appeals
should contain allegations concerning the appeal of that claim). See Sanctuary Surgical
Centre, 2012 WL 28263, at *3.
Accordingly,
IT IS ORDERED that so much of Defendant’s motion as requests a more definite
statement is GRANTED while the remainder is DENIED.5
IT IS FURTHER ORDERED that in light of Plaintiffs’ need to re-plead, the other
pending motions to dismiss are DISMISSED AS MOOT.6

5

R. Doc. No. 171.

6

R. Docs. Nos. 170, 172, 173, 176. Particularly as to issues such as
exhaustion, Defendants’ current motions cannot be decided because of
Plaintiffs’ generalized, collective pleading.
3

New Orleans, Louisiana, this 30th day of September, 2013.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

4