SHAH v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY et al

Filing 44

OPINION. Signed by Judge Renee Marie Bumb on 3/13/2018. (tf, )

[Dkt. No. 38]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

RAHUL SHAH, M.D., o/a/o DENNIS
C.,
Plaintiff,

Civil No. 16-8803(RMB/AMD)

v.
OPINION
BLUE CROSS BLUE SHIELD OF
TEXAS,
Defendant.

APPEARANCES:
Michael Gottlieb, Esq.
Callagy Law, PC
650 From Road, Suite 565
Paramus, NJ 07652
Attorneys for Plaintiff.
Anne B. Sekel, Esq.
Foley & Lardner, LLP
90 Park Avenue
New York, NY 10016
Attorneys for Defendant.
BUMB, United States District Judge:
This matter comes before the Court upon the filing of a
motion by Defendant Health Care Service Corporation, a Mutual
Legal Reserve Company, doing business in Texas as Blue Cross and
Blue Shield of Texas (incorrectly identified as Blue Cross Blue
Shield of Texas) (“HCSC” or “Defendant”) [Dkt. No. 38] seeking

the dismissal of all counts of Plaintiff Rahul Shah, M.D.’s
(“Plaintiff” or “Dr. Shah”) Amended Complaint pursuant to Fed.
R. Civ. P. 12(b)(6). For the reasons stated herein, the motion
will be granted, in part, and denied, in part.
I.

Factual and Procedural Background 1

On February 16, 2015, Dr. Shah performed spinal surgery
(the “Procedures”) on his patient, Dennis C. (the “Patient”).
(Am. Compl. ¶ 4-5). Dr. Shah obtained an assignment of benefits
from the Patient so that he could bring claims under the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §
1002, et seq. (“ERISA”) on the Patient’s behalf. (Am. Compl. ¶6;
Am. Compl. Ex. B).
After performing the Procedures, and pursuant to the
assignment of benefits, Dr. Shah prepared a Health Insurance
Claim Form (“HICF”) demanding reimbursement in the amount of
$162,466.00 from Defendant, the claims administrator of the
Patient’s health insurance plan. (Am. Compl. ¶ 7, 15; Am. Compl.
Ex. C). Defendant, however, paid only a fraction of the
requested amount. (Id. at ¶ 8; Am. Compl. Ex. D).
Unsatisfied with the amount of reimbursement he received,
Dr. Shah instituted an administrative appeal, pursuing a full
1

The facts recited herein are derived from Plaintiff's Amended
Complaint [Docket No. 27]. The Court will, as it must, accept
Plaintiff’s well-pled allegations as true for purposes of this
motion to dismiss. See Bistrian v. Levi, 696 F.3d 352, 358 n. 1
(3d Cir. 2012).
2

reimbursement. (Id. at ¶ 9; Am. Compl. Ex. E). On April 1, 2015,
Plaintiff submitted a letter to “Horizon Bluecard” formally
requesting an “internal appeal/second look.” (Am. Compl. Ex. E).
In his letter, Dr. Shah also requested that he be furnished with
certain documents, including “a copy of the Summary Plan
Description, Plan Policy, and identification of the Plan
Administrator/Plan Sponsor.” (Am. Compl. ¶ 10; Am. Compl. Ex.
E). On March 30, 2016, Plaintiff submitted a letter to Defendant
containing his “second notice of appeal” and reiterating his
request for documents. (Am. Compl. Ex. E). Although Defendant
responded to the appeal, it did not furnish all of the documents
requested by Plaintiff. (Am. Compl. ¶ 11). Specifically,
Plaintiff did not receive a copy of the Summary Plan Description
until this litigation had been initiated and proceeded to
discovery. (Id. at ¶ 12).
On October 4, 2016, Plaintiff filed a four count complaint
in the New Jersey Superior Court, Civil Division, Cumberland
County (No. CUM-L-699-16) against Horizon Blue Cross Blue Shield
of New Jersey (“Horizon”) and Defendant alleging: (1) breach of
contract; (2) failure to make all payments pursuant to member’s
plan under 29 U.S.C. § 1132(a)(1)(B); (3) breach of fiduciary
duty and co-fiduciary duty under 29 U.S.C. § 1132(a)(3), 29
U.S.C. § 1104(a)(1), and 29 U.S.C. § 1105(a); and (4) failure to
establish/maintain reasonable claims procedures under 29 C.F.R.
3

2560.503-1. [Dkt. No. 1-1]. Defendant removed the action to
federal court on November 28, 2016 on the basis of federal
question jurisdiction.
On March 10, 2017, Plaintiff dismissed his claims against
Horizon without prejudice. [Dkt. No. 23]. On May 4, 2017, he
filed the Amended Complaint restating the four counts of the
initial complaint and adding two additional counts against
Defendant: (1) failure to establish a summary plan description
in accordance with 29 U.S.C. § 1022 and 29 C.F.R. § 2520.102-2
and (2) failure to provide a copy of the summary plan
description upon written request in violation of 29 U.S.C. §
1024. (Am. Compl. ¶ 51-68).
Pursuant to this Court’s Individual Rules and Procedures,
the Defendant filed a letter on June 16, 2017 expressing its
intention to file a motion to dismiss Plaintiff's Complaint and
setting forth its arguments in support of that proposed motion.
[Dkt. No. 33]. In response, Plaintiff indicated that he would
voluntarily dismiss Counts One (breach of contract) and Six (29
U.S.C. § 1024). [Dkt. No. 36]. Defendant filed the pending
motion to dismiss on July 12, 2017, seeking the dismissal of all
of the remaining claims. [Dkt. No. 38].
II.

Motion to Dismiss Standard

To withstand a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
4

factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “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.” Id. at 663. “[A]n unadorned, the defendantunlawfully-harmed me accusation” does not suffice to survive a
motion to dismiss. Id. at 678. “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)).
Rule 12(b)(6) requires the district court to “accept as
true all well-pled factual allegations as well as all reasonable
inferences that can be drawn from them, and construe those
allegations in the light most favorable to the plaintiff.”
Bistrian, 696 F.3d at 358 n. 1. Only the allegations in the
complaint and “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of
the case” are taken into consideration. Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.
1994) (citing Chester Cty. Intermediate Unit. v. Pennsylvania
5

Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also
“consider an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff's
claims are based on the document.” Pension Ben. Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
III. Analysis
At the outset, the Court notes that Counts One (breach of
contract) and Six (29 U.S.C. § 1024) are dismissed with
prejudice in accordance with the Plaintiff’s concessions that
his contract claim is preempted by ERISA and that Defendant, as
a claims—rather than plan—administrator is not the proper party
against which to bring a claim for failure to furnish a summary
plan description. [Dkt. No. 36]. Consistent with these
concessions, and pursuant to the Court’s directive, [Dkt. No.
37], these Counts were not included in Defendant’s motion or
briefed by the parties.
Defendant seeks the dismissal of each of the remaining
claims. As to Count Two, HCSC argues that only a plan itself or
a plan administrator can be liable for wrongful denial of
benefits under 29 U.S.C. § 1132 (“ERISA § 502”), and that as a
claims administrator it is not a proper defendant for such a
claim. Defendant argues that Count Three (ERISA fiduciary duty
claim) should be dismissed for two reasons. First, Defendant
argues that the statute only permits equitable relief, and that
6

Plaintiff seeks only legal relief. Second, Defendant argues that
because Plaintiff seeks only legal relief, the fiduciary duty
claim must be dismissed as duplicative of Count Two, which
alleges a failure to make all payments under ERISA. Finally,
Defendant argues that Counts Four (failure to establish or
maintain reasonable claims procedures) and Five (failure to
establish a summary plan description) should be dismissed
because the regulations relied upon by Plaintiff in bringing
these claims do not provide private causes of action.
The Court will address Defendant’s arguments seriatim.
A. Wrongful Denial of Payments under ERISA
In Count Two of the Amended Complaint, Plaintiff seeks to
recover, via ERISA § 502(a)(1)(B), the difference between the
reimbursement he requested and the amount paid by Defendant,
among other relief. Defendant contends that “[t]he proper
defendant in a claim for wrongful denial of benefits under ERISA
§ 502(a)(1)(B) is the plan itself or a person who controls the
administration of benefits under the plan.” (Def.’s Br. at 3).
Since HCSC is merely the claims administrator, and not the plan
administrator, it argues that it is not a proper defendant under
ERISA § 502 and that this claim should be dismissed. At this
juncture, the Court disagrees.
ERISA § 502 provides that “[a] civil action may be brought
. . . by a participant or beneficiary . . . to recover benefits
7

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.” 29 U.S.C. §
1132(a)(1)(B). The Third Circuit has stated, in distinguishing
who may be sued under ERISA § 502(a)(1)(B) and § 502(a)(2), that
“in a § 1132(a)(l)(B) claim, the defendant is the plan itself
(or plan administrators in their official capacities only).”
Graden v. Conexant Sys. Inc., 496 F.3d 291, 301 (3d Cir.
2007)(citing Chapman v. ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 509–10 (2d Cir. 2002)) . Later, however, in
a non-published decision, the Third Circuit directly addressed
the question of who may be a proper defendant in an ERISA §
502(a)(1)(B) claim and held that “in a claim for wrongful denial
of benefits under ERISA, the proper defendant is the plan itself
or a person who controls the administration of benefits under
the plan,” and that “[e]xercising control over the
administration of benefits is the defining feature of the proper
defendant under 29 U.S.C. § 1132(a)(1)(B).” Evans v. Employee
Benefit Plan, Camp Dresser & McKee, Inc., 311 F. App’x 556, 558
(3d Cir. 2009) (emphasis added).
Plaintiff alleges that it was Defendant who was responsible
for the decision not to fully reimburse him. (Am. Compl. ¶ 3, 7,
8, 16, 28, 31, 40). Moreover, Plaintiff appended a copy of the
“Summary Plan Description” (“SPD”) to the Amended Complaint as
8

Exhibit F. 2 The SPD is merely a summary of the Patient’s plan,
and “does not list all of the details” of the plan. (Am. Compl.
Ex. F at 1). The SPD does, however, list Defendant as the
“Claims Administrator” and provides various examples of the role
appurtenant to such position.
This Court cannot find that regardless of its role and
responsibilities under the plan, HCSC is immune from liability
under ERISA §502(a)(1)(B) simply because of the title given to
it under this contract. In order to determine whether Defendant
is the proper party to face such a suit, the Court looks to the
issue of “control over the administration of benefits.” See
Evans, 311 F. App’x at 558. At this stage, the Court cannot
determine, as a matter of law, that HCSC is an improper
defendant under § 502(a)(1)(B). Thus, Defendant’s motion to
dismiss this claim is denied, without prejudice. Defendant may
raise this issue again at the summary judgment stage.
B. Breach of Fiduciary Duty
In Count Three of the Amended Complaint, Plaintiff alleges
that HCSC breached a fiduciary duty and co-fiduciary duty owed
to Plaintiff and seeks redress via 29 U.S.C. § 1132(a)(3)(B)
(“ERISA § 502(a)(3)”), 29 U.S.C. § 1104(a)(1) and 29 U.S.C. §

2

As stated above, in ruling on a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), the Court may consider exhibits
attached to the complaint. See Oshiver, 38 F.3d at 1384 n. 2
(internal citations omitted).
9

1105(a). Defendant argues that Count Three should be dismissed
because Plaintiff seeks legal relief, and only equitable relief
is available under ERISA for a breach of fiduciary duty.
Moreover, Defendant argues that Plaintiff’s fiduciary duty
claims merely restate his claim for wrongful denial of benefits
and are thus duplicative of Count Two. Plaintiff argues, among
other things, that dismissal of these claims at this stage would
be premature. The Court agrees.
Plaintiff alleges that HCSC breached its fiduciary duties
by
Failing to issue an Adverse Benefit Determination in
accordance with the requirements of ERISA and
applicable regulations; . . . Participating knowingly
in, or knowingly undertaking to conceal, an act or
omission of such other fiduciary, knowing such act or
omission is a breach; . . . Failing to make reasonable
efforts under the circumstances to remedy the breach
of such other fiduciary; and . . . Wrongfully
withholding money belonging to Plaintiff.
(Am. Compl. ¶ 41). Through this claim, Plaintiff seeks various
remedies, including reimbursement for benefits allegedly owed
under the plan and “such other and further relief as the Court
may deem just and equitable.” (Id.)
ERISA § 502(a)(3) is a “general ‘catchall’ provision[ that]
... act[s] as a safety net, offering appropriate equitable
relief for injuries caused by violations that § 502 does not
elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S.
489, 490 (1996). Therefore, the Supreme Court held, “we should
10

expect that where Congress elsewhere provided adequate relief
for a beneficiary's injury, there will likely be no need for
further equitable relief, in which case such relief normally
would not be appropriate.” Id. at 515 (internal citations and
quotations omitted). HCSC argues that Plaintiff impermissibly
seeks the same reimbursement of plan benefits through Counts Two
and Three and that accordingly, Count Three must be dismissed.
The Supreme Court has not held—and neither has the Third
Circuit—that Varity “requires that a plaintiff's claim under §
502(a)(3) be dismissed whenever a plaintiff also asserts a claim
for relief under § 502(a)(l)(B).” Bell v. Guardian Life Ins.
Co., No. CIV. 08-01629 (JEI), 2008 WL 4852840, at *4 (D.N.J.
Nov. 6, 2008) (citing Parente v. Bell Atlantic-Pennsylvania and
Aetna U.S. Healthcare, Inc., No. 99-5478, 2000 WL 419981, at *2
(E.D. Pa. April 18, 2000)). Courts in the Third Circuit—and in
this District—have been faced with the issue of “the effect of
Varity . . . on a plaintiff's ability to simultaneously pursue
claims for benefits under § 502(a)(1)(B) and for breach of
fiduciary duty under § 502(a)(3),” and have come out on both
sides. Rahul Shah, M.D. v. Horizon Blue Cross Blue Shield, No.
15-8590 (RMB/KMW), 2016 WL 4499551, at *9 (D.N.J. Aug. 25, 2016)
(quoting Beye v. Horizon Blue Cross Blue Shield of N.J., 568 F.
Supp. 2d 556, 575 (D.N.J. 2008)) (additional citations
omitted)(noting split among circuits and within this District as
11

to ability to simultaneously maintain claims under ERISA §
502(a)(1)(B) and § 502(a)(3)). This Court finds, as it has
before, that dismissal at this stage would be premature, and
that at the pleadings stage, Plaintiff may “plead alternative
causes of action under § 502(a)(1)(B) and § 502(a)(3).” See
Rahul Shah, M.D. v. Horizon Blue Cross Blue Shield 2016 WL
4499551 at *9-11 (quoting Bell, 2008 WL 4852840, at *4 (citing
Parente, 2000 WL 419981, at *3 (“[P]lacing plaintiffs in the
predicament of choosing between two valid ERISA claims before
they have had the benefit of discovery, and thereby forcing
plaintiffs to drop claims that could lead to relief, is not only
antithetical to the spirit of liberal pleading rules, it is
patently unjust.”))); accord Masri v. Horizon Healthcare Servs.,
Inc., Civil No. 16-6961 (KM/JBC), 2017 WL 4122434, at *5-6
(D.N.J. Sept. 18, 2017); Shah v. Aetna, No. Civil No. 17-195
(JBS/JS), 2017 WL 2918943, at *2 (D.N.J. July 6, 2017)(citation
omitted); Ross v. AXA Equitable Life Ins. Co., Civil No. 161591, 2016 WL 7462542 at *4 n. 4 (D.N.J. Dec. 28, 2016); HUMC
Opco LLC v. United Benefit Fund, Civil No. 16–168, 2016 WL
6634878, at *4 (D.N.J. Nov. 7, 2016); DeVito v. Aetna, Inc., 536
F. Supp. 2d 523, 533–34 (D.N.J. 2008); Beye v. Horizon Blue
Cross Blue Shield of New Jersey, 568 F. Supp. 2d 556, 574–75
(D.N.J. 2008).

12

At the appropriate stage of the litigation, however, “the
Court will not permit a [breach of fiduciary duty] claim to
duplicate the relief theories of [a benefits claim] . . . .”
Shah, 2016 WL 4499551, at *10 (citation omitted). Accordingly,
Defendant’s motion to dismiss Count Three of the Amended
Complaint is denied, without prejudice. HCSC may renew its
challenge to the redundancy of Dr. Shah's claims on summary
judgment. 3
C. Failure to Establish or Maintain Reasonable Claims
Procedures
In Count Four, Plaintiff asserts a claim for failure to
establish or maintain reasonable claims procedures under 29
C.F.R. § 2560.503-1. Defendant argues that this claim should be
dismissed because it is “well-established” that 29 C.F.R. §
2560.503-1 is simply a “regulatory device” which “does not
provide for a private right of action, let alone a right to
monetary damages.” (Def. Br. at 5). Plaintiff seemingly concedes
that he is not entitled to monetary relief, but contends that
Defendant’s argument for dismissal is “incomplete” because it
does not address Plaintiff’s requests for equitable relief in
the form of “an Order that Defendants have not established and
3

Plaintiff argues, citing CIGNA Corp. v. Amara, 563 U.S. 421
(2011), that he may seek monetary damages pursuant to ERISA §
502(a)(3). The Court will not reach this argument at this stage.
As with its arguments that the relief sought by Plaintiff in
Count Three is duplicative of that sought in Count Four, HCSC
may address this contention at the summary judgment stage.
13

maintained claims procedures that comply with 29 C.F.R. §
2560.503-1, and that as a result Plaintiff is deemed to have
exhausted all required administrative remedies” and “such other
and further relief as the Court may deem just and equitable.”
(Pl.’s Br. at 7; Am. Compl. ¶ 50).
As to monetary relief, this Court has held—and other courts
have consistently done the same—that neither 29 C.F.R. §
2560.503-1 nor 29 U.S.C. § 1133 (ERISA § 503), the statutory
provision it accompanies, gives rise to a private cause of
action. See Shah, 2016 WL 4499551, at *11-12 (citing Drzala v.
Horizon Blue Cross Blue Shield and Anthem Blue Cross Blue Shield
of Ohio, 2016 WL 2932545, at *6 (D.N.J. May 18, 2016)( “there is
no distinction between ERISA procedures claims brought directly
under ERISA § 1133 and those brought pursuant to the applicable
regulation.”)); Galman v. Sysco Food Servs. of Metro New York,
LLC, 2016 WL 1047573, at *5 (D.N.J. Mar. 16, 2016) (“Section 503
does not create an independent right of action.”); Piscopo v.
Pub. Serv. Elec. & Gas Co., 2015 WL 3938925, at *5 (D.N.J. June
25, 2015), aff'd sub nom. Piscopo v. Pub. Serv. Elec. & Gas Co.,
2016 WL 3000342 (3d Cir. May 25, 2016) (granting motion to
dismiss because “section 503 of ERISA does not confer a private
right of action.”); Cohen v. Horizon Blue Cross Blue Shield of
New Jersey, 2013 WL 5780815, at *8–9 (D.N.J. Oct. 25, 2013)).

14

Plaintiff’s requests for “equitable relief” pursuant to 29
C.F.R. § 2560.503-1 fare no better. As noted above, in addition
to monetary relief, in the Wherefore Clause of Count Four of the
Amended Complaint, Plaintiff requests “an Order that Defendants
have not established and maintained claims procedures that
comply with 29 C.F.R. § 2560.503-1, and that as a result
Plaintiff is deemed to have exhausted all required
administrative remedies” and “such other and further relief as
the Court may deem just and equitable.” (See Am. Compl. ¶ 50).
“Exhaustion of remedies, however, is not an independent cause of
action; it is a condition precedent to the assertion of other
claims.” Masri v. Horizon Healthcare Servs., Inc., No. 16-6961
(KM/JBC), 2017 WL 4122434, at *7 (D.N.J. Sept. 18, 2017).
Moreover, in light of the holdings of this Court and so many
others that 29 C.F.R. § 2560.503-1 does not create a cause of
action, the Court will not, and cannot, grant “other and further
relief” for its violation.
Violations of 29 C.F.R. § 2560.503-1 may be probative of
issues under ERISA § 502, but do not, in and of themselves, give
rise to a cause of action. Accordingly, Defendant’s motion to
dismiss Count Four of the Amended Complaint will be granted, and
Count Four will be dismissed, with prejudice.
D. Failure to Establish a Summary Plan Description

15

In Count Five, Plaintiff asserts a claim for failure to
establish a Summary Plan Description (“SPD”) in accordance with
29 U.S.C. § 1022 (ERISA § 102) and 29 C.F.R. 2520.102-2.
Defendant argues that Count Five should be dismissed because
ERISA § 102 does not provide a cause of action for failure to
establish an SPD.
Plaintiff alleges that “the employee benefit plan is not
written in a manner calculated to be understood by the average
plan participant and it has the effect of failing to inform its
participants and beneficiaries.” (Am. Compl. ¶ 57).
Specifically, Plaintiff avers that “the summary plan description
states that the patient’s cost-sharing obligation for out-ofnetwork outpatient surgery is 40% without explaining what 40%
refers to (i.e. 40% of what?),” thereby “insinuat[ing] that outof-network outpatient surgery is reimbursed at 60% of the
provider’s charges.” (Id. at ¶ 58-59; Am. Compl. Exhibit F at
23). Further, Plaintiff alleges that the SPD is misleading in
that it “states that the out-of-pocket maximum for an individual
is $6,000, insinuating that this amount is the maximum amount
the patient can be liable for in a calender year,” but Defendant
is “holding Dr. Shah liable for $145,458.58.” (Id. at ¶ 60-61).
To remedy these alleged violations, Plaintiff seeks, via ERISA §
102 and 29 C.F.R § 2520.102-2, full reimbursement and equitable
relief.
16

Defendant cites to Engers v. AT&T, 428 F. Supp. 2d 213,
234 (D.N.J. 2006) as support for the proposition that ERISA §
102 does not provide a cause of action for its violation.
Plaintiff argues that the court in Engers did not foreclose
recovery for furnishing a misleading SPD, but rather addressed
whether the proper avenue for such recovery was through ERISA §
102 or ERISA § 502, the general ERISA enforcement mechanism.
(Pl.’s Opp. at 7-8). Plaintiff asks this Court to determine
whether Count Five “more appropriately fits under § 502”. (Id.
at 8).
As recognized by the court in Engers, “ERISA does not
provide an automatic cause of action for the violation
of every provision.” Engers, 428 F. Supp. 2d at 234 (emphasis in
original). “Rather, ERISA provides specific enforcement
provisions.” Id. Nothing in the language of either ERISA § 102
or its accompanying regulation, 29 C.F.R. 2520.102-2, indicates
that it provides a cause of action. 4 As such, this Court finds
that neither §102 nor 29 C.F.R. 2520.102-2 provides a cognizable
cause of action. Accordingly, Count Five—violation of §102 and
29 C.F.R. 2520.102-2—will be dismissed, with prejudice.
Moreover, the Court will not decide at this juncture
whether Count Five “fits under § 502.” Plaintiff plead a
4

The Court notes that Plaintiff cites to no case supporting the
proposition that ERISA § 102 provides an independent cause of
action.
17

violation of §102 and its accompanying regulation. This Court
will not rewrite Plaintiff’s Complaint. If Plaintiff wishes to
amend his pleadings for a second time, he should seek leave to
do so.
IV.

Conclusion

For the foregoing reasons, Defendant’s motion to dismiss
the Amended Complaint will be denied, in part, and granted, in
part. The motion to dismiss Counts Two and Three of the Amended
Complaint will be denied, without prejudice. The motion to
dismiss Counts Four and Five will be granted, and Counts Four
and Five will be dismissed, with prejudice.
An accompanying Order shall issue on this date.

s/ Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge

DATED: March 13, 2018

18