Pushkin v. Nussbaum et al
OPINION. Signed by Judge Dennis M. Cavanaugh on 4/24/13. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DR. DAVID B. PUSHKIN,
Hon. Dennis M. Cavanaugh
Civil Action No. 12-cv-00324 (DMC) (JAD)
BETH R. NUSSBAUM, RHI
ENTERTAINMENT, INC., TIMOTHY J.:
QUINLI VAN, MERITAIN HEALTH,
INC., KEVIN L. BREMER, ESQ..
ARONSOHN WEINER AND SALERNO,:
L.L.C., GEICO, PREMIER PRIZM
SOLUTIONS, LISA ARDRON, GINA
FUGE, DOMINIC SPAVENTA, PAUL
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the filing of six motions to dismiss the First
Amended Complaint of Dr. David M. Pushkin (“Plaintiff’) filed by Defendants Meritain Health,
Inc. and Timothy J. Quinlivan (hereinafter “Meritain Health” and “Quinlivan” respectively) (Aug.
30, 2012, ECF No. 208); Premier Prizm Solutions, LLC (hereinafter “PPS”) (Aug. 30, 2012, ECF
No. 209); RHI Entertainment, Inc. (hereinafter “RHI”) (Aug. 31, 2012, ECF No. 210); Beth
Nussbaum (hereinafter “Nussbaum”) (Aug. 31, 2012, ECF No. 211); Defendants GEICO, Lisa
Ardron, Gina Fuge, Dominic Spaventa, and Paul Feldmann (hereinafter “GEICO Defendants”)
(Sept. 4, 2012, ECF No. 212); Aronsohn Weiner & Salerno, P.C. and Kevin L. Bremer, Esq.
(hereinafter “AWS” and “Bremer”) (Sept. 5,2012, ECF No. 213) (hereinafter collectively referred
to as ‘Moving Defendants”). Pursuant to FED. R. Civ. P. 78, no oral argument was heard. The
Court has reviewed and considered the submissions of the parties. Because this Court finds that
Plaintiff failed to plead the Amended Complaint with the requisite specificity, the Moving
Defendants’ motions to dismiss (ECF Nos. 208, 209, 210, 211, 212, 213) are granted. The
Amended Complaint is dismissed without prejudice, and Plaintiff is granted leave to file a second
amended complaint within thirty days.
On or about November 30, 2010, Plaintiff filed an initial action against Defendants
Nussbaurn, RHL Quinlivan, Meritain Health, Bremer, and AWS seeking to recover for damages
alleged to have stemmed from a denial of medical coverage and benefits Plaintiff believes he was
entitled to. On February 17, 2011, Plaintiff filed an Amended Complaint naming additional
Defendants, including the GEICO Defendants and PPS.
Plaintiff married Nussbaum on December 28, 2008. Nussbaum was an employee of RHI
and was covered under the RHI employee benefit health plan (“RHI Plan”). Plaintiff received
benefits under the RHI Plan, as Nussbaum’s spouse from January 1, 2004 to November 22, 2006.
Meritain Health was the Third Party Administrator (“TPA”) of the RHI Plan. Quinlivan was an
attorney employed by Meritain Health during the relevant time period.
Plaintiff carried group insurance coverage through his own employer from January 1, 2004
to November 22, 2006, using it as secondary coverage. Plaintiff resigned from his employment as
a chemistry and physics educator on November 22, 2006 and filed for disability status. On
November 22, 2006, Plaintiff declined secondary COBRA from his employer, as he asserts the
I The facts contained herein have been adopted from the Parties’ respective moving papers.
RHI plan was of superior quality. Plaintiff had spinal surgery in March 2007.
later, on or around January 28, 2008, Plaintiff alleges he was in a car accident, from which he
suffered a spinal injury.
In November 2008, Nussbaum’s employment with RHI was terminated. Plaintiff asserts
that Nussbaum continued the couple’s health insurance coverage by paying for the COBRA
premiums from November 22, 2008 through September 21, 2009. During the aforementioned
time period, Plaintiff and Nussbaum had access to health care coverage under the RHI Plan.
Plaintiff asserts, on September 21, 2009, Nussbaum “unilaterally declined all COBRA benefits at
employee expense.” Meritain Health, as the TPA, processed claims through and including
September 21, 2009.
Plaintiff asserts that, in accordance with the 2009 Federal Stimulus and 2010 Recovery
Act’s COBRA Health Insurance Continuation Premium Subsidy, in the event of a divorce
involving unemployed spouses, each spouse is entitled to their own separate COBRA policy for
the remainder of the COBRA Period. Plaintiff argues Nussbaum, Meritain Health, RHI, Bremer,
and AWS did not present Plaintiff with an application for his own COBRA policy after Plaintiff
and Nussbaum divorced in December 2009.
Since Plaintiff was already on COBRA status
effective November 21, 2008, Plaintiff argues all Defendants were obligated to provide Plaintiff
his own separate insurance policy with RHI and Meritain.
Plaintiff also maintained auto insurance coverage with GEICO, which included some
health care coverage. PPS is a TPA of Personal Injury Protection Benefits (hereinafter “PIP”) for
GEICO, providing GEICO with medical cost containment services related to GEICO’s PIP claims.
Plaintiff alleges that PPS denied payment of various benefit claims to Plaintiffs pain management
provider and other health care service providers. Plaintiff also seeks to hold four of GIECO’ s
employees during the relevant time period, Lisa Ardron, Gina Fuge, Dominic Spaventa. and Paul
Feldman, responsible for the denial of claims. Plaintiff further asserts that because of PPS’s
“repeated and pre-emptive termination of benefits and denial of provider claims,” he “has gone
without several medical procedures and other means of healthcare.” These denials contributed to
Plaintiffs “declining health and isolated and unsafe living situation.”
The Amended Complaint also includes allegations concerning Nussbaum’s treatment of
Plaintiff during the course of his illnesses and following his injuries, as well as her conduct during
the couple’s divorce proceedings. Plaintiff asserts Nussbaum refused to modify the couple’s
residence to assist with his medical needs following Plaintiffs surgery and that Nussbaurn doubted
Plaintiffs eligibility for disability services. Thereafter, Plaintiff asserts Nussbaum hired AWS
and Bremer to assist in divorce proceedings she initiated against Plaintiff. Plaintiff alleges, that
with the assistance of AWS and Bremer, Nussbaum barred Plaintiff from his residence “without
any legal order and denied access to personal property, including any items Plaintiff uses for
ambulation and assistance relative to his physical condition.” Plaintiff further alleges that AWS
and Bremer submitted a “take it or leave it” divorce settlement to Plaintiff According to Plaintiff.
AWS and Bremer communicated with the human resource department of RHI, seeking to
terminate Plaintiffs health care insurance coverage and failed to offer him a COBRA application.
R. Civ. P. 12(b)(6)
In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir, 2008).
“[A] complaint attacked by a.
motion to dismiss does not need detailed factual allegations.”
Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the 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.” Id. (internal citations
“[A court is] not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Instead, assuming that the factual
allegations in the complaint are true, those “[f]actual allegations must be enough to raise a right to
relief above a speculative level.” Twombly, 550 U.S. at 555.
To survive a motion to dismiss, a complaint must contain sufficient 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 Twombly, 550 U.5. at 570). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. “Determining whether the allegations in a complaint are
‘plausible’ is a ‘context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Young v. Speziale, Civ. No. 07-03129. 2009 WL 3806296. at * 3
(D.N.J. Nov. 10, 2009) (quoting Iqbal, 556 U.S. at 679). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—
but it has not ‘shown’—that the pleader is entitled to relief” Igbal. 556 U.S. at 679.
“To decide a motion to dismiss, courts generally consider only the allegations contained in
the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). The complaint must
show an entitlement to relief with its facts. Steedley v. McBride, 446 Fed.Appx. 424, 425 (3d Cir.
2011) (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 2011 (3d Cir. 2009)). “A document
filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded. must
be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus.
551 U.S. 89, 94 (2007) (internal citations omitted) (internal quotation marks omitted).
B. FED. R. Civ. P.8
Additionally, Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint
contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief”
A complaint must plead facts sufficient at least to “suggest” a basis for
liability. Spruifl v. GiHis, 372 F.3d 218, 236 n. 12 (3d Cir. 2004).
In order to withstand dismissal, Plaintiffs Amended Complaint must satisfy Federal Rule
of Civil Procedure 8 and “contain.
pleader is entitled to relief.”
a short and plain statement of the claim showing that the
R. Civ. P. 8(a)(2). The Court finds Plaintiff has failed to
comply with this requirement. The Moving Defendants
Meritain Health, Quinlivan, PPS,
Nussbaum, RHI, the GEICO Defendants, Bremer, and AWS
have each alleged that the claims
against them are unclear and thus difficult to defend against. At the heart of the Amended
Complaint is Plaintiffs contention that the termination of his COBRA benefits “violated federal
¶ 25, Feb.
17, 2011, ECF No. 13).
Section Two of Plaintiffs Amended
Complaint contains a bulleted list of six statutes, which Plaintiff points to as the basis for this
Court’s federal question jurisdiction. However, the Amended Complaint makes no mention of
which statute in particular Plaintiff seeks to hold each Defendant liable for violating nor of which
conduct in particular stands in violation of the statutes.
Plaintiff mentions COBRA and the Employee Retirement Income Security Act of 1974
(“ERISA”) in Section Two of this Amended Complaint as the basis of this Court’s jurisdiction yet
does not point to any of its relevant provisions. The COBRA amendments to the Employee
Retirement Income Security Act of 1974 (“ERISA”) instruct that “[t]he plan sponsor of each group
health plan shall provide.. that each qualified beneficiary who would lose coverage under the
plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period,
continuation coverage under the plan.” 29 U.S.C.
1161(a); see also Fama v. Design Assistance
Corp., Civ. Nos. 12-2414, 12-2474, 2013 WL 144346329, at *1 (3d Cir. April 10, 2013). At the
heart of the determination of whether COBRA notice is required—and whether a statutory penalty
shall be imposed—is the existence and timing of the “qualifying event.” $g 29 U.S.C
The occurrence of a qualifying event triggers notice requirements, both for an employer and for an
administrator of a group health care plan.
It is unclear to this Court whether Plaintiff is making a
claim in this regard, and, if so, the legal basis for such a claim.
Although this Court is sensitive to the challenges a pro litigant faces, the Court cannot
expect the Defendants to defend against claims that are not clearly and specifically alleged. The
Amended Complaint stands in stark contrast to Rule 8’s requirement of a “short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). As
the Amended Complaint is not broken up into individual counts, the Moving Defendants must
comb through forty-five lengthy paragraphs of factual allegations and pinpoint each instance
where the numerical code Plaintiff has assigned to each Defendant appears and attempt to
determine how it corresponds to the list of federal statutes contained in Section Two. The Court
may not be tasked with trying to ascertain the various claims nor can Defendants properly respond
to such a complaint. Factual allegations contained in a complaint must be specific and legal
conclusions pled as factual allegations are not sufficient.
See l3ell Atlantic Corp. v, Twombly,
550 U.S. 544, 547 (2007). The Court may not hold Defendants liable for misconduct when a
violation is not particularly and specifically alleged.
The Court thus finds, as it pertains to each of the Moving Defendants, the pleading
requirements of Rule 8 have not been satisfied and Plaintiff has failed to plead his Amended
Complaint with requisite specificity. The Court notes that it has not reached a decision on the
merits of the Plaintiffs claims against the Defendants, due to the non-specific nature of the
For the foregoing reasons, the Moving Defendants motions to dismiss (ECF Nos. 208, 209,
210, 211, 212, 213) are granted. Plaintiffs Amended Complaint is dismissed without
prejudice and Plaintiff is permitted to re-file within thirty days with more specificity so that each
Defendant may clearly ascertain the claims asserted against him or her. An appropriate Order
accompanies this Opinion.
ennis M. Cavanaugh, U.S.D.J.
All Counsel of Record
Joseph A. Dickson, U.S.M.J.
2 Plaintiff iiow has the benefit of Defendants’ legal arguments seeking dismissal. In all likelihood, these motions
will be renewed if Plaintiff chooses to file an amended complaint. It may be in the Plaintiff’s interest to carefully
review his alleged claims and consider which, if any, should be abandoned if he chooses to reJile.
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