Farias v. Massachusetts Laborers' Health & Welfare Fund et al

Filing 33

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff's Motion to Amend Complaint (Docket Entry # 24 ); Defendant's Motion to Dismiss Complaint (Docket Entry # 16 ). Express Scripts' motion to dis miss (Docket Entry # 16 ) is ALLOWED to the extent that the negligence and contract claims against Express Scripts are dismissed and plaintiff is afforded 45 days to file a motion for leave to file an amended complaint to include an ERISA claim[s] against Express Scripts. The motion to amend (Docket Entry # 24 ) is DENIED. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CHRISTINA FARIAS,
Plaintiff,
CIVIL ACTION NO.
17-11097-MBB

v.
MASSACHUSETTS LABORERS’ HEALTH
AND WELFARE FUND and EXPRESS SCRIPTS,
Defendants.

MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION TO AMEND COMPLAINT (DOCKET ENTRY # 24);
DEFENDANT’S MOTION TO DISMISS COMPLAINT (DOCKET ENTRY # 16)
January 9, 2018
BOWLER, U.S.M.J.
On July 13, 2017, defendant Express Scripts (“Express
Scripts”) filed a motion to dismiss this action with prejudice
under to Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”).

On August

3, 2017, plaintiff Christina Farias (“plaintiff”) filed a motion
to amend the complaint under Fed. R. Civ. P. 15(a)(2) (“Rule
15”) (Docket Entry # 24) to add specificity to a negligence
claim.

She also filed an opposition to the motion to dismiss.

(Docket Entry # 23).

Defendant Massachusetts Laborers’ Health

and Welfare Fund (“the Fund”) did not file a motion to join the
motion to dismiss or a written opposition to the motion to
amend.

At an October 25, 2017 hearing on the motions, however,

the Fund asserted the futility of the amendment as preempted by
the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. §§ 1001-1461.

At the conclusion of the hearing, this

court took the motions (Docket Entry ## 16, 24) under
advisement.
PROCEDURAL BACKGROUND
In April 2016, plaintiff filed a lawsuit in the United
States District Court for the District of Massachusetts.

See

Farias v. Mass Laborers’ Health and Welfare Fund and Express
Scripts, Civil Action No. 16-10723-WGY.1

The action raises the

same claims, i.e., breach of contract and negligence, brought in
this case based on the same incident.

In September 2016,

plaintiff voluntarily dismissed the lawsuit after Express
Scripts filed a motion to dismiss.

In May 2017, she filed this

action with the same breach of contract and negligence claims in
Massachusetts Superior Court (Middlesex County).

The action

seeks to “recover for harm resulting from the Defendants’
refusal to prescribe medications.”

(Docket Entry # 26-1).

In

June 2017, the Fund, an ERISA employee benefit plan (Docket
Entry # 31-1, p. 55),2 timely removed this action to federal

1

It is appropriate to take judicial notice of related court
proceedings. See Bluetarp Financial, Inc. v. Matrix Const. Co.,
Inc., 709 F.3d 72, 78 n.4 (1st Cir. 2013) (taking “judicial
notice that neither the South Carolina state-court case [n]or
the Maine state-court case has gone to final judgment”); Ezra
Charitable Trust v. Tyco Intern., Ltd., 466 F.3d 1, 9 n.7 (1st
Cir. 2006) (allowing motion “to take judicial notice of the
SEC’s 2006 complaint against Tyco” filed in district court, “the
subsequent consent decree, and the final judgment”).
2
References to page numbers refer to the docketed page number
rather than the page number of the exhibit or document itself.  
2

court based on federal question jurisdiction.

(Docket Entry #

1-2).
In lieu of filing a motion to dismiss, the Fund filed an
answer and asserted a crossclaim against Express Scripts.
(Docket Entry # 19).

In the crossclaim, the Fund asserts that

Express Scripts mistakenly “locked down” all of plaintiff’s
prescriptions, including her psychiatric medications, to one
pharmacy.

The crossclaim further alleges that Express Scripts

rectified the mistake within seven days.

(Docket Entry # 19).

Express Scripts moves to dismiss the complaint because the
complaint:

(1) fails to allege sufficient facts of a contract

with respect to the breach of contract claim and sufficient
facts of a duty owed to plaintiff to support the negligence
claim; (2) ERISA preempts the contract and negligence claims;
and (3) any attempt to amend the complaint with an ERISA denial
of benefits claim is futile as to Express Scripts and the
damages plaintiff seeks are not recoverable.
17).

(Docket Entry #

In opposing the motion to dismiss, plaintiff asserts that

the proposed amended complaint adds the requisite factual detail
to the negligence claim.
In Count I for negligence, the proposed amended complaint
alleges that Express Scripts and the Fund (“defendants”) had an
“obligation to act reasonably as to the disbursement of
medication” and a duty to “follow and abide by state statutory
3

and regulatory law.”3

(Docket Entry # 24-1).

Because the

negligence claim centers on a “failure to follow state law
statutes and regulations,” it “is outside the scope of ERISA,”
according to plaintiff.

(Docket Entry # 23).

In Count II for

breach of contract, the proposed amended complaint alleges that
defendants had “an obligation to arrange for disbursement of
medication” and breached that obligation thereby causing
plaintiff harm.

(Docket Entry # 24-1).

At the October 25, 2017 hearing on the motions (Docket
Entry ## 16, 24), plaintiff initially argued the motion to
amend.

In reply, the Fund acknowledged its lack of a “formal

opposition” to the motion to amend and, consistent with Express
Scripts’ opposition (Docket Entry # 26), argued that ERISA
preempted the state law claims for negligence and contract.

The

Fund concluded the argument by stating, “That’s my position on
the motion to amend.”

(Docket Entry # 32).

Accordingly, this

court will consider the Fund’s oral arguments as opposing the
motion to amend.

As noted, the Fund did not join the motion to

dismiss, which Express Scripts presented after the Fund made the
foregoing arguments.

Having preserved the defense of a failure

to state a claim for relief in its answer (Docket Entry # 19),

3

The original complaint simply alleges that defendants had an
obligation to act reasonably in the disbursement of medication.
(Docket Entry # 1-1).
4

the Fund avoids any prejudice because it retains the ability to
file a motion for judgment on the pleadings.

See Fed. R. Civ.

P. 12(h)(2)(B).
STANDARD OF REVIEW
The standard of review of a motion to amend is wellsettled.

Leave to amend under Rule 15 is “freely given when

justice so requires” absent an adequate basis to deny amendment
such as “futility, bad faith, undue delay or a dilatory motive.”
Fed. R. Civ. P. 15(a)(2); Maine State Building and Construction
Trades Council, AFL-CIO v. United States Dep’t of Labor, 359
F.3d 14, 19 (1st Cir. 2004) (internal quotation marks omitted);
see also United States ex rel Gagne v. City of Worcester, 565
F.3d 40, 48 (1st Cir. 2009) (outlining instances where denial of
leave to amend would arise).
basis to deny amendment.

Futility constitutes an adequate

See Universal Communications Systems,

Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); Maine
State Building and Construction Trades Council, AFL-CIO v.
United States Dep’t of Labor, 359 F.3d at 19.

“An amendment is

futile if it could not withstand a Rule 12(b)(6) motion to
dismiss.”

Menard v. CSX Transp., Inc., 840 F. Supp. 2d 421, 427

(D. Mass. 2012).
To survive a Rule 12(b)(6) motion to dismiss, the complaint
must include factual allegations that, when taken as true,
demonstrate a plausible claim to relief even if actual proof of
5

the facts is improbable.

See Bell Atlantic v. Twombly, 550 U.S.

544, 555-558 (2007); see also Kenney v. State St. Corp., Civ.
Action. No. 09-10750-DJC, 2011 WL 4344452, at *2 (D. Mass. Sept.
15, 2011) (applying Rule 12(b)(6) Twombly standard in assessing
futility of proposed amendment).

Thus, although “not equivalent

to a probability requirement, the plausibility standard asks for
more than a sheer possibility that a defendant has acted
unlawfully.”

Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir.

2010) (internal quotation marks omitted); accord Saldivar v.
Racine, 818 F.3d 14, 18 (1st Cir. 2016); Feliciano-Hernandez v.
Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011).
“[A]ccepting as true all well-pleaded facts in the complaint and
making all reasonable inferences in the plaintiff’s favor,”
Boroian, 616 F.3d at 64, the “factual allegations ‘must be
enough to raise a right to relief above the speculative level.’”
Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010); Gargano v.
Liberty International Underwriters, Inc., 572 F.3d 45, 48 (1st
Cir. 2009) (court “accept[s] as true all well pleaded facts in
the complaint and draw[s] all reasonable inferences in favor of
the plaintiff”).

Legal conclusions are not included in the Rule

12(b)(6) record.

See Dixon v. Shamrock Financial Corp., 522

F.3d 76, 79 (1st Cir. 2008) (accepting “well-pleaded facts as
true, but reject[ing] ‘unsupported conclusions or
interpretations of law’” in reviewing Rule 12(b)(6) dismissal);
6

see, e.g., Soto-Torres v. Fraticelli,

654 F.3d 153, 157 n.2 (1st

Cir. 2011) (“complaint’s allegations that Soto–Torres was
‘illegally and unreasonabl[y] detained’ and that ‘excessive
force’ was used in pushing him to the floor are legal
conclusions that are not to be credited”).
Thus, “[t]o survive a motion to dismiss, the complaint must
allege ‘a plausible entitlement to relief.’”

Correa-Ruiz v.

Fortuno, 573 F.3d 1, 8 (1st Cir. 2009); see also Fitzgerald v.
Harris, 549 F.3d 46, 52 (1st Cir. 2008).

Because the complaint

and the proposed amended complaint reference the insurance
health care coverage plaintiff obtained through the Fund (Docket
Entry # 1-1, ¶ 4) (Docket Entry # 24-1, ¶ 4), this court can
consider the Fund’s Summary Plan Description (Docket Entry # 311) of the health care coverage when deciding the motion to
dismiss and the futility argument relative to the motion to
amend.

See Claudio-De Leon v. Sistema Universitario Ana G.

Mendez, 775 F.3d 41, 46 (1st Cir. 2014) (“we, like the district
court, may consider . . . ‘documents central to plaintiffs’
claim,’ and ‘documents sufficiently referred to in the
complaint’”).
FACTUAL BACKGROUND
A.

The Complaint
The facts set out in the original complaint are as follows.

The Fund provides healthcare coverage for participants who work
7

a certain number of hours in covered employment with a
contributing employer.

(Docket Entry # 31-1).

As stated in the

Summary Plan Description, the Fund, i.e., the Massachusetts
Laborers’ Health and Welfare Fund, is a “Qualified Employee
Health and Welfare Benefit Plan that provides medical care” and
other “benefits to eligible employees and their qualified
dependents” (“the plan”).

(Docket Entry # 31-1, p. 55).

As the

plan administrator, the Board of Trustees of the Fund and other
individuals with delegated responsibility “have discretionary
authority to interpret the terms of the plan.”

(Docket Entry #

31-1, p. 55).
Plaintiff suffers from depression and a bipolar disorder,
for which she was prescribed Latuda, Zoloft, and Lamictal.
(Docket Entry # 1-1).

She obtains healthcare coverage through

her spouse, a participant in the plan as a member of a union.
(Docket Entry # 1-1).
In November 2015, the Fund advised plaintiff that she would
be placed in a “pharmacy lock-in program.”
1).

(Docket Entry # 1-

The program required her to obtain certain prescriptions

from predetermined pharmacy locations in order for the Fund to
pay for “controlled substances.”

(Docket Entry # 1-1).

These

“controlled substances” included only Lyrica, which plaintiff
confirmed with both the preselected pharmacy and the Fund.
(Docket Entry # 1-1).

The preselected pharmacy was located at
8

1145 Kempton Street in New Bedford, Massachusetts.
Entry # 1-1).

(Docket

Other prescriptions, i.e., Latrida and

Loncodical, became subject to the lock-in program soon after its
November 2015 enactment.

As a result, the Fund required

plaintiff to obtain a prescription for these medications from
her primary care physician.

(Docket Entry # 1-1).

Plaintiff’s

“psychologist, Dr. Munir,4 had been prescribing the medication”5
for a five-year period and, due to the lock-in program, now
lacked the authority to prescribe it.

(Docket Entry # 1-1).

The Fund’s requirement that a primary care physician prescribe
the medication for an emotional condition he never treated was
therefore “wrong.”

(Docket Entry # 1-1).

After repeatedly telephoning her primary care physician for
a number of weeks, plaintiff was told that her primary care
physician could not prescribe these medications because he had
not treated her “emotional condition.”

(Docket Entry # 1-1).

Additionally, her primary care physician’s office indicated it
had made efforts to contact the Fund to resolve the issue.
(Docket Entry # 1-1).
Once Dr. Munir learned plaintiff was not receiving her
prescribed medication, he contacted her primary care physician,

4

The complaint does not include Dr. Munir’s first name.
Neither the complaint nor the proposed amended complaint
specifies the name(s) of “the medication” prescribed by Dr.
Munir for the last five years.
5

9

who thereafter authorized the prescription.
1).

(Docket Entry # 1-

Plaintiff, however, became depressed and detached due to

the deprivation of her medication for one-and-a-half weeks.
(Docket Entry # 1-1).

Because plaintiff was deprived of her

medication for a period of time, the re-introduction of the
medication on November 24, 2015 had “no effect” on her system.
(Docket Entry # 1-1).

On December 2, 2015, plaintiff tried to

commit suicide by “strangling, cutting [her] wrists, and taking
sleeping pills.”

(Docket Entry # 1-1).

Plaintiff was

transported to St. Luke’s Hospital in New Bedford for treatment
when her husband found her that same day.
B.

(Docket Entry # 1-1).

Proposed Amended Complaint
The proposed amended complaint includes all of the

foregoing facts.

The additional facts lay out Express Scripts’

function as a Pharmacy Benefits Manager (“PBM”).
# 24-1).

(Docket Entry

The proposed amended complaint also details Express

Scripts’ services and obligations to healthcare patients.
(Docket Entry # 24-1).

In particular, Express Scripts offers

individuals in “health care programs . . . lower-cost
therapeutic alternatives.”

(Docket Entry # 24-1).

designs medications therapy programs.”

It “also

(Docket Entry # 24-1).

Express Scripts’ services vary from developing a list of drugs
for distribution to physician profiling.

(Docket Entry # 24-1).

It uses “panels of physicians, pharmacists, and other clinical
10

experts to develop a list of drugs . . . for distribution to
health care patients.”

(Docket Entry # 24-1).

It also “engages

in physician profiling as to the designation of the correct
physician to prescribe the appropriate medication.”
Entry # 24-1).

(Docket

Express Scripts additionally “conducts trials of

specific medications.”

(Docket Entry # 24-1).
DISCUSSION

Express Scripts moves to dismiss the complaint with
prejudice arguing that ERISA preempts the state negligence and
contract claims.

Express Scripts also argues that, even if the

court allowed plaintiff to amend the complaint to include an
ERISA claim, Express Scripts is not a proper party and
compensatory damages are not recoverable.

Plaintiff argues that

her negligence claim is grounded upon defendants’ failure to
follow state laws and regulations.

She submits that the

negligence and contract claims are not preempted because they
fall outside the scope of ERISA.
A.

ERISA Preemption
Section 514(a) of ERISA broadly and expansively provides

that the statute “shall supersede any and all State laws insofar
as they may now or hereafter relate to any employee benefit
plan.”

29 U.S.C. § 1144(a) (“provisions of this subchapter . .

. shall supersede any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan”); accord
11

Zipperer v. Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007)
(describing section 514(a) as “far reaching,” but “not
boundless”); see also Hotz v. Blue Cross and Blue Shield of
Massachusetts, 292 F.3d 57, 60 (1st Cir. 2002) (29 U.S.C. §
1144(a) “has been applied widely to bar state claims seeking
damages for alleged breach of obligations pertaining to an ERISA
plan”).

As interpreted by the Supreme Court, there are two

instances where ERISA preempts a state law claim:

“if it has a

reference to ERISA plans” or if it “has an impermissible
connection with ERISA plans.”6

Gobeille v. Liberty Mut. Ins.

Co., 136 S.Ct. 936, 943 (2016) (internal quotation marks
omitted).
In determining the reach of ERISA preemption, “the Supreme
Court has cautioned against a literal reading of [section]
514(a)’s ‘relate to’ standard, and ruled that courts must ‘look
instead to the objectives of the ERISA statute as a guide to the
scope of the state law that Congress understood would survive.’”
Zipperer v. Raytheon Co., 493 F.3d at 53 (quoting Hampers v.
W.R. Grace & Co., 202 F.3d 44, 51 (1st Cir. 2000)); Gobeille v.
Liberty Mut. Ins. Co., 136 S.Ct. at 943 (courts must avoid
“‘uncritical literalism’ in applying” the relate to standard

6

The parties correctly do not dispute that the plan is an
employee welfare benefit plan within the meaning of ERISA. See
29 U.S.C. § 1002(1).
12

under section 514(a) of ERISA) (quoting N.Y. State Conf. of Blue
Cross & Blue Shield Plans v. Travelers Ins., 514 U.S. 645, 656
(1995)).

“‘ERISA’s objectives include providing a uniform

national administration of ERISA plans and avoiding inconsistent
state regulation of such plans.’”

Forristall v. Fed. Exp.

Corp., 61 F. Supp. 3d 186, 188 (D. Mass. 2014) (quoting Zipperer
v. Raytheon Co., 493 F.3d at 53).
The purported negligence concerns the failure or the
delayed arrangement of medication to plaintiff under an ERISA
plan.

As to the negligence claim, plaintiff maintains that,

because the “claim focuses on the failure to follow state law
statutes and regulations,” it is outside the scope of ERISA.
(Docket Entry # 23).

She relies on Insco v. Aetna Health & Life

Ins. Co., 673 F. Supp. 2d 1180 (D. Nev. 2009), to assert that
the negligence claim is not preempted by ERISA.

(Docket Entry #

23).
In Insco, the plaintiff contracted a disease purportedly
because of unsafe, negligent healthcare practices at a clinic.
The plaintiff had healthcare coverage through his employer under
a plan administered by defendant Aetna Health and Life Insurance
Company (“Aetna”).

The court found that the state law claims

were not preempted in part because the Nevada state law
provisions related to “general health care, an area historically
left to the states,” and the provisions, as did Aetna’s choice
13

of providers in its preexisting network, applied “to both ERISA
and non-ERISA plans.”

Id. at 1186-89.

Plaintiff cites a number of Massachusetts laws and
regulations7 that she considers “more stringent than those
existing in Nevada.”

(Docket Entry # 23).

With respect to

these statutes and regulations, plaintiff maintains that Express
Scripts is considered a “carrier” within the meaning of 958
C.M.R. § 3.101 which, for reasons stated by Express Scripts
(Docket Entry # 26, pp. 7-8), is incorrect.8

Plaintiff also

contends that these state “standards required Express Scripts to
verify that the correct responsibilities had been assigned to
the correct physician.”

(Docket Entry # 23).

Examining Insco in greater detail, the defendant, Aetna,
was not only an administrator of the plaintiff’s plan but “also
a healthcare organization with its own duties under the Nevada
Code.”

Insco v. Aetna Health & Life Ins. Co., 673 F. Supp. 2d

at 1189.

Because the claims involved such duties and quality

7

Specifically, plaintiff cites the following laws and
regulations: Mass. Gen. Laws ch. 176O, §§ 21, 23; Mass. Gen.
Laws ch. 111, § 4N; 958 C.M.R. §§ 3.001, 3.101, 3.306; 130
C.M.R. § 403.408; and 243 C.M.R. § 3.06. Plaintiff alleges that
these laws and regulations are proof of how carriers must
develop guidelines to determine if services are “medically
necessary.” (Docket Entry # 23, pp. 6-7).
8
Express Scripts makes a number of other arguments why various
statutes and regulations plaintiff cites provide her no relief
against ERISA preemption. (Docket Entry # 26, pp. 7-9). Here
again, Express Scripts’ arguments are well taken.
14

assurance standards under Nevada law independent and regardless
of an ERISA plan, there was no preemption.

See id. at 1188-89.

As explained in Insco:
[A] state law claim based on Aetna’s allegedly negligent
selection and retention of healthcare providers in its
Preferred Provider Network is not preempted by ERISA §
514(a), because these choices are made not in conjunction
with Aetna’s contractual administration of an ERISA plan,
but rather on Aetna’s own accord, regardless of the
existence of any ERISA plans . . . Aetna’s choice of
providers in the network is made independently from its
contractual duties to administer any ERISA plan. Aetna’s
choice to grant access to its Network as it exists, or its
direct selection of providers for Ross under the contract,
are not subject to suit under state law, but Aetna’s choice
of providers within its own preexisting healthcare Network
is.
Id. at 1189 (emphasis added).

The court in Insco noted that Bui

v. AT&T, 310 F.3d 1143 (9th Cir. 2002), “distinguished causes of
action involving medical decisions made in the course of
treatment, which are not preempted, from those that involve
administrative decisions made in the course of administering an
ERISA plan, which are preempted.”

Insco v. Aetna Health & Life

Ins. Co., 673 F. Supp. 2d at 1188.

The Insco court also noted,

however, that Bui determined that, “[A] claim based on
negligence in selection or retention of a provider, regardless
of the source of the duty, ‘is a necessary part of the
administration of an ERISA plan,’ not provision of services.”
Id. at 1188 (quoting Bui, 310 F.3d at 1152).

The Insco court

distinguished the latter language in Bui based on an unpublished

15

Nevada district court case that a claim based on the quality
assurance standards in Nevada law was more akin to the “quality
of medical services” than the administration of ERISA benefits.
Id. at 1188 (distinguishing on Bui v. AT&T, 310 F.3d at 1152).
Here, however, plaintiff’s claim that defendants failed to
disburse medication, due to the administrative requirement of
the plan that her primary care physician must be the one to
prescribe it, is a necessary part of the administration of the
ERISA plan at issue.

Unlike the plaintiff’s contraction of a

disease at a clinic purportedly based on Aetna’s failure to
oversee and monitor the clinic or Aetna’s preexisting choice of
preferred providers for its network for ERISA and non-ERISA
plans, see id. at 1183, 1188-89, this case necessarily entails
an examination of the plan and its administrative requirements
to obtain coverage for prescription drug benefits.
Furthermore, the conduct at issue “relates to” the ERISA
plan because the plan provides prescription drug coverage
(Docket Entry # 31-1, pp. 32-34) and plaintiff grounds the
negligence claim on the alleged delay in prescription coverage.
See Otero Carrasquillo v. Pharmacia Corp., 466 F.3d 13, 20 (1st
Cir. 2006).

“[A] state cause of action relates to an employee

benefit plan” when “the cause of action requires ‘the court’s
inquiry [to] be directed to the plan.’”

Id. (quoting Ingersoll-

Rand Co. v. McClendon, 498 U.S. 133, 140-42 (1990)).
16

Because

the conduct supporting the state law fraudulent inducement claim
in Otero involved consulting the ERISA plan, the claim was
directed at the ERISA plan and therefore preempted.

Id.

Here,

the purported undue delay resulting from the administration of
the plan in requiring plaintiff’s primary care physician to
approve the medication in the pharmacy lock-in program
implicates the process used to obtain the prescription drug
benefit.

See Hotz v. Blue Cross and Blue Shield of Mass., Inc.,

292 F.3d 57, 60 (1st Cir. 2002) (finding removal appropriate
because, as in Pilot Life,9 Hotz’s claim “against the insurer
alleging undue delay in processing her physician’s referral”
challenged “‘the process used to assess a participant’s claim
for a benefit payment under the plan’”).

Any analysis of the

negligence claim necessitates referencing and examining the
prescription drug care benefit and the administration of that
benefit via the pharmacy lock-in program and accompanying
requirement to obtain prescriptions from plaintiff’s primary
care physician.

(Docket Entry # 31-1, p. 33).

claim is preempted.

As such, the

See Otero Carrasquillo, 466 F.3d at 20

(finding state law claims preempted when they require analysis
of ERISA employee benefit plan); accord Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. at 48 (“[t]he common law causes of action . .

9

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 (1987).
17

. each based on alleged improper processing of a claim for
benefits under an employee benefit plan, undoubtedly meet the
criteria for pre-emption under § 514(a)”); Hotz v. Blue Cross
and Blue Shield of Mass., Inc., 292 F.3d at 60; see also
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 149–50
(2001) (objective of ERISA to provide uniformity and
administrative ease to plans would be inhibited if “ERISA
administrators [had] to master the relevant laws of 50 states”).
Express Scripts also argues that ERISA preempts the
contract claim.

Plaintiff acknowledges that the breach of

contract claim by the plan “could be subject to ERISA.”

(Docket

Entry # 23, p. 9).
The contract purportedly breached is the plan.

(Docket

Entry # 23, p. 9) (“The relevant contract in this case would be
the Plan.”).

Adhering to the reasoning in Bui, the contract

claim “do[es] not merely reference the ERISA plan, [it]
require[s] its construction because the contract allegedly
breached is the ERISA plan itself.”

Bui, 310 F.3d at 1152.

contract claim is therefore preempted.

See id.

The

Inasmuch as

ERISA preempts the negligence and contract claims, it is not
necessary to address defendants’ alternative arguments seeking
to dismiss these claims.

The claims in the original complaint

are therefore subject to dismissal as to Express Scripts, the
only movant in the motion to dismiss.
18

Because the negligence

and breach of contract claims in the proposed amended complaint
are equally deficient, the motion to amend is denied on the
basis of futility.
B.

Proper Party and Damages
In moving to dismiss the complaint, Express Scripts argues

it is not a proper party in an ERISA denial of benefits claim in
the event plaintiff amends the complaint to include such a
claim.

Express Scripts asserts that, because it performs “only

‘administrative services’ for the Fund relating to the
management of the Fund’s prescription drug benefit,” it is not a
proper defendant.

(Docket Entry # 17, pp. 7-8).

If ERISA

preempts the state law claims, plaintiff argues that, although
the party that controls the plan is ordinarily the proper
defendant, Express Scripts “could have taken on the
responsibilities of the administration” in light of its
involvement in the distribution process of medication under the
Fund.

(Docket Entry # 23, pp. 8-9).
Because the deficient proposed amended complaint does not

include an ERISA claim, the arguments concern whether to allow
plaintiff an opportunity to file a motion for leave to amend to
raise an ERISA claim or dismiss this action with prejudice, as
Express Scripts requests.

Under certain circumstances, a court

may allow a plaintiff an opportunity to amend in lieu of a
dismissal of the claim with prejudice.
19

See Eastern Food

Services, Inc. v. Pontifical Catholic University Services Ass’n,
Inc., 357 F.3d 1, 8 (1st Cir. 2004) (permission to amend
complaint “often granted not only pretrial but after dismissal
for failure to state a claim where court thinks that the case
has some promise”); see, e.g., Rodi v. Southern New England
School of Law, 389 F.3d 5, 20 (1st Cir. 2004) (directing district
court to afford the plaintiff opportunity to amend and replead
unfair deceptive trade practice claim).
It is well established that the party that controls the
administration of an ERISA plan is the proper party defendant in
a denial of benefits claim.

Gómez-González v. Rural

Opportunities, Inc., 626 F.3d 654, 665 (1st Cir. 2010).

The

plan administrator, i.e., the Fund, is therefore a proper
defendant.

See id.

As recognized in Gómez, when “an entity or

person other than the named plan administrator takes on the
responsibilities of the administrator, that entity may also be
liable for benefits.”

Id.

In the case at bar, plaintiff argues that Express Scripts
meets the Gómez exception and is therefore a proper party
because “Express Scripts could have taken on the
responsibilities of the plan.”

(Docket Entry # 23).

As a PBM,

Express Scripts “did far more than exercise physical control as
to the performance of administrative tasks,” according to
plaintiff.

(Docket Entry # 23, p. 9).
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As explained in Gómez, “[T]he mere exercise of physical
control or the performance of mechanical administrative tasks
generally is insufficient to confer fiduciary status.”

Id.

Thus, a “claimant’s employer who only performed ‘ministerial
functions in the processing of the claimant’s disability
claims’” is therefore not “‘held liable under ERISA for the
denial of the claimant’s disability claims.’”

Newman v. Metro.

Life Ins. Co., Civil Action No. 12-10078-DJC, 2013 WL 951779, at
*6 (D. Mass. Mar. 8, 2013) (quoting Gómez, 626 F.3d at 666, in
parenthetical) (brackets omitted), appeal docketed, No. 15-2239
(Oct. 21, 2015).

In a denial of benefits claim, “the plan

administrator, or the person or entity functioning as the
administrator, is the person or entity that has the authority or
responsibility for administering benefits under the plan.”

Id.

“‘Exercising control over the administration of benefits is the
defining feature of the proper defendant under 29 U.S.C. §
1132(a)(1)(B).’”

Id. (quoting Evans v. Emp. Benefit Plan, 311

F. App’x 556, 558 (3rd Cir. 2009), in parenthetical).
Given the preference to decide cases on the merits, this
court declines to impose an outright denial of an ERISA claim.
See generally Rodi v. Southern New England School of Law, 389
F.3d at 20 (noting “‘the purpose of pleading is to facilitate a
proper decision on the merits’”).

Plaintiff is thus afforded 45

days to file a motion for leave to amend the complaint to
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include an ERISA claim against Express Scripts setting out
specific facts that provide a plausible claim to name Express
Scripts as an ERISA defendant.

Plaintiff should also re-assess

the viability of the negligence and breach of contract claims
against the Fund and, if appropriate, seek leave to include an
ERISA claim rather than the state law claims against the Fund.
Express Scripts’ argument that any ERISA claim cannot seek
“extra-contractual damages” (Docket Entry # 17, pp. 9-10) is
well taken but premature in light of allowing plaintiff the
opportunity to file a motion for leave to amend to include an
ERISA claim.

Plaintiff is advised, however, that ERISA does not

allow recovery for “‘extra[-]contractual damages’—i.e., damages
separate from the benefits to which the plan documents entitle
the participants—such as emotional distress resulting from a
plan’s failure to honor it[s] obligations, . . . or
consequential damages arising from a delay in processing a
benefit claim.”

Evans v. Akers, 534 F.3d 65, 73 (1st Cir. 2008)

(citations omitted).
CONCLUSION
In accordance with the foregoing discussion, Express
Scripts’ motion to dismiss (Docket Entry # 16) is ALLOWED to the
extent that the negligence and contract claims against Express
Scripts are dismissed and plaintiff is afforded 45 days to file
a motion for leave to file an amended complaint to include an
22

ERISA claim[s] against Express Scripts.

The motion to amend

(Docket Entry # 24) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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