SHAH v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY

Filing 77

OPINION. Signed by Judge Renee Marie Bumb on 9/13/2018. (rtm, )

[Docket No. 65]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

RAHUL SHAH, MD, on assignment
of Marjorie M.,
Plaintiff,

Civil No. 15-8590 (RMB/KMW)

v.

OPINION

HORIZON BLUE CROSS BLUE SHIELD
OF NEW JERSEY,
Defendant.

APPEARANCES:
Samuel S. Saltman
Michael Gottlieb
Callagy Law PC
650 From Road
Suite 565
Paramus, NJ 07652
Attorneys for Plaintiff
Michael E. Holzapfel
Becker LLC
Revmont Park North
1151 Broad Street, Suite 112
Shrewsbury, NJ 07702
Attorney for Defendant

BUMB, UNITED STATES DISTRICT JUDGE:
This is one of seventeen ERISA suits filed in this District
wherein Plaintiff Dr. Rahul Shah (“Dr. Shah”), as assignee of
his patients, has sought to recover additional health insurance
payments allegedly due under each patient’s health insurance

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plan.

The Court previously granted summary judgment to

Defendant, Horizon Blue Cross Blue Shield of New Jersey
(“Horizon”), see Shah v. Horizon Blue Cross Blue Shield of New
Jersey, 2018 WL 801584 (D.N.J. Feb. 9, 2018).

Horizon, as the

successful party in this suit, presently moves for an award of
attorney’s fees pursuant to Fed. R. Civ. P. 54 and 29 U.S.C. §
1132(g)(1).

For the reasons stated herein, the Court denies

the motion but expects that, in light of several adverse
decisions from Courts within this District, Plaintiff will not
continue his pattern of filing very similar complaints.
I.

RELEVANT FACTS AND PROCEDURAL HISTORY
The facts and procedural history of this suit are fully set

forth in the Court’s Opinions adjudicating Horizon’s Motion to
Dismiss, Shah v. Horizon Blue Cross Blue Shield of New Jersey,
2016 WL 4499551 (D.N.J. Aug. 25, 2016), and Horizon’s Motion for
Summary Judgment, Shah v. Horizon Blue Cross Blue Shield of New
Jersey, 2018 WL 801584 (D.N.J. Feb. 9, 2018).
II.

LEGAL STANDARD
“A claim for attorney’s fees and related nontaxable

expenses must be made by motion[.]”

Fed. R. Civ. 54(d)(2)(A).

Fee shifting is available in this ERISA case pursuant to 29
U.S.C. § 1132(g)(1), which provides, “[i]n any action under this
subchapter . . . by a participant, beneficiary, or fiduciary,

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the court in its discretion may allow a reasonable attorney’s
fee and costs of action to either party.”
When a “party has achieved success on the merits 1, . . . the
district court [has] discretion as to whether to award fees in
light of the familiar Ursic factors, which include:
(1)
the offending parties’ culpability or bad
faith;
(2)
the ability of the offending parties to
satisfy an award of attorneys’ fees;
(3)
the deterrent effect of an award of
attorneys’ fees against the offending parties;
(4)
the benefit conferred on members of the
[ERISA] plan as a whole; and
(5)
the relative
positions.”

merits

of

the

parties’

Perelman v. Perelman, 793 F.3d 368, 377 (3d Cir. 2015) (citing
Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983)).
“[T]he Ursic factors are not requirements in the sense that a
party must demonstrate all of them in order to warrant an award
of attorney’s fees, but rather they are elements a court must
consider in exercising its discretion.”

Fields v. Thompson

Printing Co., 363 F.3d 259, 275 (3d Cir. 2004).

Further, the

Court’s consideration of the Ursic factors will differ, to some
extent, depending on whether the party seeking fees is a

1

It is undisputed that Horizon has achieved some success
on the merits.
3

plaintiff-employee or a defendant-ERISA plan.

Cf. Dorn’s

Transp., Inc. v. Teamsters Pension Trust Fund of Phila. and
Vicinity, 799 F.2d 45, 49 (3d Cir. 1986) (citing Marquardt v. N.
Am. Car Corp., 652 F.2d 715, 719–20 (7th Cir. 1981) (“Although
the five factors used as guidelines . . . do not explicitly
differentiate between plaintiffs and defendants, consideration
of these factors will seldom dictate an assessment of attorneys’
fees against ERISA plaintiffs.”)). 2
III. ANALYSIS
The Court considers each Ursic factor in turn.
(A)

Plaintiff’s “culpability or bad faith”

“The first Ursic factor favors an award . . . not only in
cases involving ‘bad faith’ but in other cases as well. . . .
[B]ad faith normally connotes an ulterior motive or sinister
purpose. . . . A losing party may be culpable, however, without
having acted with an ulterior motive.

In a civil context,

culpable conduct is commonly understood to mean conduct that is
blameable; censurable; ... at fault; involving the breach of a
legal duty or the commission of a fault. . . . Such conduct

2

Compare, Toussaint v. JJ Weiser, Inc., 648 F.3d 108, 111
(2d Cir. 2011) (“the five factors very frequently suggest that
attorney’s fees should not be charged against ERISA plaintiffs.
This . . . is necessary to prevent the chilling of suits brought
in good faith.”); Tingey v. Pixley-Richards W., Inc., 958 F.2d
908, 909 (9th Cir. 1992) (“the . . . factors very frequently
suggest that attorney’s fees should not be charged against ERISA
plaintiffs.”).
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normally involves something more than simple negligence.”
McPherson v. Employees’ Pension Plan of Am. Re-Ins. Co., 33 F.3d
253, 256–57 (3d Cir. 1994).

Importantly, “[a] party is not

culpable merely because it has taken a position that did not
prevail in litigation.” Id. at 257.
In support of this factor, Horizon argues that “Plaintiff
is a habitual litigant who routinely files the same canned
complaint. . . . In barely two years, Plaintiff has filed
seventeen lawsuits against Horizon and/or other Blue Cross Blue
Shield Association licensees.”

(Moving Brief, p. 8)

Horizon’s

argument, however, is made with the benefit of hindsight.
particular case was the first of the 17 to be filed.

This

Thus, the

complaint in this case cannot be characterized as “canned”,
insofar as it could not have been copied from earlier, similar
complaints that Plaintiff filed. 3
Even so, as Plaintiff correctly observes, all 17 of the
cases he filed arose out of “the very same or similar
circumstances.”

(Opposition Brief, p. 10)

Thus, substantial

similarity among complaints is-- to some extent-- to be
expected, until at least there have been adjudications on the
merits of the claims asserted in the complaints.

3

As such, the

That is not to say, however, that the subsequently filed
complaints were not “canned.”

5

Court does not find culpability within the context of this
specific case. 4
Accordingly, this factor does not weigh in favor of a fee
award in the above-captioned case.
(B)

Plaintiff’s ability to satisfy a fee award

Plaintiff does not assert that he is unable to satisfy a
fee award; his opposition brief only disputes Ursic factors 1
and 3 through 5.
(C)

Deterrent effect on Plaintiff of a fee award

Horizon’s argument with regard to this factor is premised
on its assertion that “Plaintiff filed this [canned complaint]
with no aforethought.”

(Moving Brief, p. 10)

According to

Horizon, “Plaintiff’s opportunistic, rote approach to litigation
should be deterred.” (Reply Brief, p. 13)

As discussed above,

however, the Court does not find that Plaintiff has acted
culpably in this case.
Further, Horizon’s prediction that “[a]bsent some
deterrent, this Court . . . can only expect to see more of these
same complaints in the future” (Moving Brief, p. 11), may be
needless worry.

Plaintiff’s most recent such complaint was

4

The instant case is distinguishable from University Spine
Center v. Horizon Blue Cross Blue Shield of New Jersey, No. 16CV-8021 (SDW)(LDW), 2018 WL 2134060, at *2 (D.N.J. May 9, 2018),
which Horizon cites. In University Spine, the plaintiff had
filed “nearly seventy suits.” Id.

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filed 18 months ago.

Indeed, after Plaintiff received this

Court’s ruling on Horizon’s Motion to Dismiss, Plaintiff filed
no additional complaints. 5

Thus, the record before this Court

does not support a finding that Plaintiff indiscriminately files
the same, or substantially the same, complaints without regard
for whether there is a legal basis for doing so.

Rather, it

would appear that Plaintiff has “gotten the message” from the
various Courts within the District that have now dismissed his
claims 6, and this Court would expect that Plaintiff’s future

5

As the Court’s own records, and Exhibit A to the
Holzapfel Certification, reflect, the first three cases filed
were: (1) this case; (2) Shah on assignment of Karyn G., 16-cv2397 (NLH); and (3) Shah on assignment of Vickie S., 16-cv-2413
(RBK). This Court granted in part Horizon’s Motion to Dismiss
on August 25, 2016. In Karyn G., Judge Hillman dismissed the
case for improper venue on March 30, 2017. Judge Kugler granted
Horizon’s Motion to Dismiss in Vickie S. on May 17, 2017.
Plaintiff filed the last of his 17 complaints on February 6,
2017. In other words, at the time Plaintiff filed the 17th
complaint, the only ruling that had been issued was this Court’s
decision granting in part and denying in part Horizon’s Motion
to Dismiss.
6

In addition to the three cases already discussed, several
other Courts within the District have granted dismissal or
summary judgment in subsequently filed cases. See Shah on
assignment of Joanne G., 16-cv-2528 (NLH), motion for summary
judgment granted; Shah on assignment of Monica M., 16-cv-5946
(NLH), motion for summary judgment granted; Shah on assignment
of William D., 16-cv-9011 (RBK), motion to dismiss granted; Shah
on assignment of Jason W., 16-cv-9405 (RBK), motion to dismiss
granted; Shah on assignment of Edward H., 17-cv-166 (NLH),
motion for summary judgment granted; Shah on assignment of Mary
A., 17-cv-632 (NLH), motion for summary judgment granted; Shah
on assignment of Christopher H., 17-cv-700 (JBS), motion to
dismiss granted; Shah on assignment of Sheila H., 17-cv-711
(NLH), motion for summary judgment granted.
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conduct will reflect a continuing understanding of the Courts’
message.
Accordingly, the Court finds that Horizon has failed to
demonstrate that deterrence, in the form of an award of
attorney’s fees, is necessary in this case, as opposed to any
later-filed cases.
(D)

Benefit conferred on members of the ERISA plan as a whole

Horizon admits that the Plan at issue is “fully-insured, as
opposed to self-funded . . . which means that the costs
associated with defending this particular lawsuit were borne by
Horizon” rather than “the employer’s capital” (Moving Brief, p.
11).

While Horizon argues that “an award of fees would benefit

enrollees of fully-insured plans” (Id.; emphasis added), this
argument misstates the legal standard.

The relevant inquiry is

whether Horizon’s success on the merits of the litigation
conferred a benefit on the plan.

See McPherson, 33 F.3d at 256

(“The fourth [Ursic] factor requires consideration of the
benefit, if any, that is conferred on others by the court’s
judgment.”) (emphasis added).
has conferred such a benefit. 7

Horizon makes no argument that it
Accordingly, this factor does not

weigh in favor of a fee award.

7

To the extent Horizon suggests that its successful
summary judgment motion avoided costs which might have been
passed on “to the ultimate consumer in the form of . . . higher
8

(E)

Relative merits of the parties’ positions

Lastly, Horizon argues that Plaintiff’s claims in this suit
lacked a “good faith basis.” (Moving Brief, p. 8)

It is

undisputed that this Court ultimately found all of Plaintiff’s
claims meritless, but, of course, meritless is not tantamount to
lacking a good faith basis for asserting claims.

“As with the

first Ursic factor, the fact that the [Plaintiff’s] positions
have not been sustained does not alone put the fifth factor in
the column favoring an award.”

McPherson, 33 F.3d at 258.

As evidenced by this Court’s opinions adjudicating both
Horizon’s Motion to Dismiss and Motion for Summary Judgment, the
Court is fully familiar with the claims and legal issues in this
suit.

While the Court has concluded Plaintiff’s claims in this

case ultimately lack merit, the Court does not conclude that
Plaintiff lacked a good faith basis for asserting such claims in
the first place.

In particular, as already discussed, the

above-captioned suit was the first-filed of the 17 suits at
issue.

Thus, at the time the complaint in this case was filed,

Plaintiff did not have the guidance of the subsequent
unfavorable decisions that have since issued from various judges
within this District.

He does now, and it would appear that he

has acted accordingly.

premiums,” (Moving Brief, p. 11), the Court finds this argument
speculative.
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Thus, this factor does not weigh in favor of a fee award.
IV.

CONCLUSION
The Court has considered and weighed all five Ursic

factors, and for the foregoing reasons, Horizon’s Motion for
Attorney’s Fees in this case will be denied.

An appropriate

Order shall issue on this date.

s/ Renée Marie Bumb
__________________________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: September 13, 2018

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