Pushkin v. Nussbaum et al
OPINION. Signed by Judge Kevin McNulty on 4/15/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DR. DAVID B. PUSHKIN,
Hon. Kevin McNulty
Civil Action No. 12-cv-00324
BETH R. NUSSBAUM, Rh
ENTERTAJNMENT, INC., TIMOTHY J.:
QUINLIVAN, 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
This matter comes before the Court upon six motions to dismiss the Second Amended
Complaint (“SAC”) of Plaintiff David B. Pushkin (“Plaintiff’ or “Pushkin”) (SAC, July 26,
2013, ECF No. 232). The motions are brought by (1) Meritain Health, Inc. (“Meritain Health”)
and Timothy J. Quinlivan, Esq. (“Quinlivan), (collectively the “Meritain Defendants”) (August
6, 2013, ECF No. 241); (2) Premier Prizm Solutions, LLC (“PPS”) (August 19, 2013, ECF No.
243); (3) RHI Entertainment, Inc. (“RHI”) (August 19, 2013, ECF No. 244); (4) Kevin L.
Bremer, Esq. (“Bremer”) and Aronsohn Weiner & Salerno, P.C. (“AWS”) (August 20, 2013,
ECF No. 247); (5) Beth R. Nussbaum (“Nussbaum”) (August 21, 2013, ECF No. 252); and (6)
GEICO, Lisa Ardon (“Ardon”), Gina Fuge (“Fuge”), Dominic Spaventa (“Spaventa”) and Paul
Feldman (“Feldman”) (collectively the “GEICO Defendants”) (August 22, 2013, ECF No. 253).
Pursuant to FED. R. Civ. p. 78, no oral argument was heard. Based on the following and for the
reasons expressed herein, Defendants’ Motions to Dismiss are granted.
On or about November 30, 2010, Plaintiff filed an initial complaint in this Court against
Defendants Nussbaum, RHI, Quinlivan, Meritain Health, Bremer, and AWS, seeking to recover
damages allegedly stemming from the denial of medical coverage and benefits Plaintiff believes
he was entitled to. (ECF No. 2). On February 17, 2011, Plaintiff filed an Amended Complaint
naming additional Defendants, including the GEICO Defendants and PPS. (ECF No. 13). All
Defendants filed motions to dismiss Plaintiffs (First) Amended Complaint. By Opinion and
Order dated April 24, 2013 (ECF Nos. 227, 228), the Hon. Dennis M. Cavanaugh dismissed the
Amended Complaint for lack of specificity and failure to comply with Rule 8’s requirement of a
“short and plain statement of the claim.” FED. R. Civ. P. 8(a)(2). That dismissal was without
prejudice; Plaintiff was granted leave to amend the complaint, and, on July 26, 2013, he filed the
SAC. (ECF No. 232). All Defendants have now filed motions to dismiss alleging that the SAC
has not cured the deficiencies of Plaintiffs dismissed Amended Complaint. Upon Judge
Cavanaugh’s retirement, this case was reassigned to me.
Plaintiff sustained an injury in August 2005 when a large piece of furniture fell on his
back. He was diagnosed with a lumbosacral fracture in November 2006 and spinal radiculopathy
in December 2006. On March 21, 2007, Plaintiff underwent fusion surgery on his lumbar spine.
On January 28, 2008, Plaintiff was involved in a motor vehicle accident, in which he suffered an
additional spinal injury. In July 2008, Plaintiffs neurological and neuromuscular impairments
were deemed by his neurologist to be severe enough to require that Plaintiff reduce the physical
demands of home and work. Plaintiff asserts that by the end of 2008, he was no longer capable
The facts set forth in this Opinion are taken from the parties’ respective moving papers and filings.
of performing duties associated with teaching chemistry and physics in a lab setting. Plaintiff’s
employment was terminated by Bergen Community College and Fairleigh Dickinson University
at the end of the fall 2008 term. Plaintiff filed for unemployment benefits on December 21,
2008, and has not been employed since. Plaintiff asserts that his health has continued to decline
and that he is currently confined to a wheelchair most of the time.
Plaintiff married Nussbaum on December 28, 2003. Nussbaum and Plaintiff separated on
February 12, 2009. Plaintiff filed for divorce on or about July 29, 2009, and the divorce was
finalized January 8, 2010. Nussbaum was represented by Bremer in the divorce proceedings.
Bremer is an attorney employed by AWS, a New Jersey law firm. During the marriage,
Nussbaum was an employee of RHI and was covered under the RHI employee benefit health
plan (“RHI Plan”). Plaintiff, by virtue of being Nussbaum’s spouse, received benefits under the
RHI Plan between 2003 and 2009. Meritain Health was the Third Party Administrator (“TPA”)
of the RHI Plan. Quinlivan was an attorney employed by Meritain Health during the relevant
In November 2008, Nussbaum’s employment was terminated by RHI. Upon termination,
Plaintiff and Nussbaum were offered, and elected to receive, ten months of health coverage
under COBRA at RHI’s expense. Plaintiff received these ten months of COBRA coverage from
November 2, 2008 through September 21, 2009. Plaintiff asserts that, in accordance with
COBRA, Plaintiff and Nussbaum were legally eligible for at least eight additional months of
health coverage, at their own expense, effective September 22, 2009. Nussbaum did not elect to
continue COBRA coverage after September 21, 2009, and did not inform Plaintiff about the
opportunity to elect to continue COBRA coverage at this time. According to Plaintiff, “under
terms of COBRA. .Nussbaum, Meritain l-Iealth and RHI were responsible for advising Plaintiff
of his rights and procedures related to continuation of his own COBRA coverage.” (SAC 32). In
the SAC, however, Plaintiff makes the contradictory assertion that “he became aware of his own
rights to individual COBRA coverage under the RHI Plan in August 2009.” (SAC 29).
As of November 16, 2009, Plaintiff received individual coverage from Horizon. He later
switched insurance providers a few times and currently uses traditional Medicare for his primary
coverage. Plaintiff asserts that if he had been allowed to continue COBRA coverage with RHI
after September 21, 2009, his monthly premiums, accounting for a one-third monthly subsidy
pursuant to the American Recovery and Reinvestment Act of 2009 (“ARRA”), would have been
$688.00 and his coverage could have been extended for 36 months. Instead, Plaintiffs
premiums under Horizon and other health insurance providers averaged over $600.00 per month.
Plaintiff contends that the quality of coverage, benefits and medical care was inferior to what he
received under the RHI Plan. Additionally, Plaintiff asserts that he no longer had out-of-network
coverage and therefore could not see many of his chosen physicians, including his spinal
Plaintiff maintained auto insurance coverage with GEICO, which also included some
health care coverage. PPS is a TPA of Personal Injury Protection Benefits (“PIP”) for GEICO.
Plaintiff alleges that after his car accident, PPS denied payment of various benefit claims to
Plaintiffs medical providers. Plaintiff also seeks to hold four of GEICO’s then
employees—Ardron, Fuge, Spaventa, and Feldman—responsible for the denial of claims.
The SAC also includes allegations concerning Nussbaum’s treatment of Plaintiff during
the course of their marriage and following his injuries, as well as her conduct during the couple’s
divorce proceedings. Against Nussbaum, Plaintiff makes allegations of spousal abuse, perjury,
fraud and violations of the Americans with Disabilities Act (“ADA”), and levels a number of
personal attacks. Plaintiff includes Bremer, Nussbaum’s divorce attorney, in many of these
allegations and also accuses Bremer of ethical breaches.
a. FED. R. Civ. P. 8 AND 12(B)(6)
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.” FED. R. Civ. P.
8(a). A complaint must plead facts sufficient to suggest a basis for liability. Spruill v. Gillis,
372 F.3d 218, 236 n. 12 (3d Cir. 2004).
In deciding a motion to dismiss 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
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.”
(internal citations omitted). “[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. Igbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 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.” Iqbal, 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
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations omitted) (internal
quotation marks omitted).
In dismissing Plaintiff’s first Amended Complaint, Judge Cavanaugh, to whom this case
was then assigned, noted that the Amended Complaint contains a list of six statutes but “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.” Pushkin v.
Nussbaum, 12-cv-0324, 2013 U.S. Dist. LEXIS 59735, at *10 (D.N.J. Apr. 25, 2013) (ECF No.
227). Although sensitive to the challenges faced by a pro se litigant, the Court explained that it
“cannot expect the Defendants to defend against claims that are not clearly and specifically
at *11...l2. The Court pointed out that “[als the Amended Complaint is not broken
up into individual counts, the Moving Defendants must comb through forty-five lengthy
paragraphs of factual allegations” and attempt to determine how those allegations correspond to
the list of federal statutes. Id. at *12. The Court ultimately dismissed the Amended Complaint
without prejudice for Plaintiff’s failure to comply with Federal Rule of Procedure Rule 8’s
requirement of a “short and plain statement of a claim” and for failing to plead causes of action
with the “requisite specificity.” j4 at *12..13.
It is fair to say that Plaintiff has either disregarded Judge Cavanaugh’s instructions or
done precisely the contrary. He has now filed an 86-page SAC (It appears to be in 11-point type,
I V spaced). (ECF No. 232). Attached to the SAC are 71 exhibits. The paragraphs are not
numbered. No individual causes of action are identified.
Plaintiff’s SAC, like its predecessor, contains a bulleted list of federal statutes. These
include the Social Security Act of 1935, the Americans with Disabilities Act (“ADA”), the
American Recovery and Reinvestment Act of 2009 (“ARRA”), the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”), and the Employee Retirement Income Security Act
(“ERISA”). Plaintiff asserts that “multiple defendants willfully, repeatedly and adversely
interfered” with Plaintiff’s health care and eligibility for COBRA health insurance and violated
Plaintiff’s rights under the ADA. However, as in the first Amended Complaint, Plaintiff’s SAC
fails to explain how the listed statutes relate to the factual allegations or how any particular
Defendant’s conduct violated any one of the listed statutes.
Defendants’ briefs suggest many substantive bases for dismissing whatever hypothetical
causes of action could be gleaned from all this. The following is a sample. Meritain and RHI
both cite the exhibits to the Complaint, which demonstrate that they complied with ERISA by
sending Plaintiff and his wife the required election forms for COBRA coverage. (Document No.
242 at 11; Document no. 244-2) The GEICO defendants survey the cited statutes and point out
the many reasons why they bear no relation to personal injury protection under automobile
insurance policies. (Document No. 253-1) Prizm discusses the lack of any cognizable tort or
contract claim, and also cites the unavailability of a PIP cause of action against a third party
administrator. (Document No. 243-2) AWS and Bremer, the attorneys, similarly survey the cited
statutes and find no application to any allegation against them; they further note the lack of any
cognizable state law cause of action against them as opposing attorneys. (Document No. 250)
Nussbaum notes that, as Plaintiffs ex-wife, she is not a proper defendant under ERISA, that
further state law claims are preempted or were settled in divorce proceedings, and that any
negligence claim is barred by the two-year statute of limitations. (Document No. 252-4)
More broadly, virtually all of the defendants assert that the SAC does not cure the
deficiencies that resulted in the dismissal of the (First) Amended Complaint, and I agree. It is
clear that the SAC, if anything, amplifies the problems of the First. Plaintiffs SAC now requires
Defendants to comb through 86 pages of factual allegations without any delineated causes of
action or even numbered paragraphs and attempt to decipher a link between Defendants’ alleged
conduct and some basis of liability related to one of the listed statutes. As with Plaintiffs first
Amended Complaint, the Court “cannot expect Defendants to defend against claims that are not
clearly and specifically alleged.”
Federal Rule of Civil Procedure 8 provides that a complaint “shall contain. a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R. Civ. P.
8(a)(2). Rule 8(a) also “requires that a complaint against multiple defendants ‘indicate clearly
the defendants against whom relief is sought and the basis upon which the relief is sought against
the particular defendants.” $ Poling v. K. Hovnanian Enterprises, 99 F. Supp. 2d 502, 5 17-18
(D.N.J. 2000). Despite specific directions from Judge Cavanaugh, Plaintiffs SAC still does not
specify which actions of which Defendant entitle him to what relief under which statute and why.
I therefore find that the SAC must be DISMISSED. I will not prospectively grant
Plaintiff leave to amend his complaint a third time. Plaintiff has failed to cure the deficiencies in
his complaint by previously allowed amendment. Moreover, he has failed to give the Court any
reason to think that a meritorious cause of action lurks within his prolix submissions. If plaintiff
wishes to amend his complaint, he must do so by a properly supported motion to amend under
Rule 15, with a proposed pleading attached. Defendants need not submit any response to the
motion unless directed to do so by the Court. See generally Foman v. Davis, 371 U.S. 178, 182
(1962) (“leave to amend shall be freely given.. .in the absence of any apparent or declared reason
repeated failure to cure deficiencies by amendments previously allowed. futility of
amendment”); Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004). Unless such a motion to
amend is submitted within 30 days and is granted, this dismissal will be WITH PREJUDICE.
For the foregoing reasons, the Motions to Dismiss brought by (1) the Meritain
Defendants (ECF No. 241); (2) PPS (ECF No. 243); (3) RHI (ECF No. 244); (4) Bremer and
AWS (ECF No. 247); (5) Nussbaum (ECF No. 252); and (6) the Geico Defendants (ECF No.
253) are granted and Plaintiffs SAC is dismissed. Such dismissal is with prejudice unless,
within 30 days, the plaintiff submits a properly supported motion to amend the complaint, and
such motion is granted. An appropriate Order accompanies this Opinion.
Dated: April 15, 2014
Kevin McNu y, U.S.D.J.
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