Pushkin v. Nussbaum et al
OPINION. Signed by Magistrate Judge Michael A. Hammer on 4/28/17. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BETH R. NUSSBAUM, et al.,
DAVID B. PUSHKIN,
Civil Action No. 12-324(KM) (MAH)
HAMMER, United States Magistrate Judge
This matter comes before the Court on pro se Plaintiff’s motion for leave to file a Fourth
Amended Complaint, D.E. 288. Defendants oppose Plaintiff’s motion, D.E. 293, 298, 300, 302,
303 and 304. The Court also has considered Plaintiff’s reply in further support of his motion,
D.E. 334. For the reasons set forth herein, the Court will deny Plaintiff’s motion.
A. Factual Allegations
Plaintiff filed the original Complaint in this matter on or about November 30, 2010,
suing the following:
1. Beth R. Nussbaum (“Nussbaum”) -- Plaintiff’s ex-wife
2. RHI Entertainment Inc. (“RHI”) -- Nussbaum’s employer during her marriage to
3. Meritain Health (“Meritain”) -- the third party administrator (“TPA”) of the RHI
employee benefit health plan (“RHI plan”)
4. Timothy J. Quinlivan, Esq. -- an attorney employed by Meritain Health
5. Aronsohn Weiner and Salerno, LLC (“AWS”) -- the law firm that represented
Nussbaum in her divorce proceedings from Plaintiff, and
6. Kevin L. Bremer, Esq. -- an attorney with AWS
Plaintiff claims that he was denied medical benefits to which he believes he was entitled.
Compl., Nov. 30, 2010, D.E. 2. Through amendment, Plaintiff named additional defendants:
2. Premier Prizm Solutions (“PPS”) – a case-management organization for personalinjury claims
3. Paul Feldman – a GEICO employee
4. Lisa Ardron and Gina Fuge -- two employees of PPS, and
5. Dominic Spaventa (“Spaventa”).
Amd. Compl., Feb. 17, 2011, D.E. 13.
As summarized in Judge McNulty’s Opinion on Plaintiff’s Motion to Amend the Second
Amended Complaint, Plaintiff alleges as follows:
Dr. Pushkin is a science educator, formerly employed by Bergen Community
College and Fairleigh Dickinson University. He sustained an injury in August
2005 and was diagnosed with a lumbar spinal fracture between November 26,
2006 and January 22, 2007. On January 28, 2008, he sustained additional spinal
injury in a motor vehicle accident. On March 21, 2007, he underwent fusion
surgery on his lumbar spine. Pushkin asserts that by the end of 2008, he was no
longer capable of performing duties associated with teaching chemistry and
physics, and his employment was terminated on December 18, 2008. He filed for
unemployment benefits and has not been employed since.
Opinion on Plaintiff’s Motion to Amend the Second Amd. Compl. Sept. 11, 2014, D.E. 286, at 34. Essentially, Plaintiff maintains that due to the actions of Defendants, he did not receive
reimbursement from either his auto insurer or his ex-wife’s health insurance plan. Pl.’s Motion
to Amend the Third Amd. Comp., Oct. 15, 2014, D.E. 288.
B. Procedural History
The procedural history of this matter is lengthy, but bears discussion to place the instant
motion in its proper context. Plaintiff originally filed a complaint in 2010 in the United States
District Court for the Southern District of New York. Plaintiff sought damages from Defendants
Nussbaum, RHI, Quinlivan, Meritain, Bremer, and AWS in the amount of $2,000,000 for “lost
potential wages and employers benefits,” “lost retroactive [extended term] Social Security
Disability benefits, unpaid medical expenses, additional debt associated with unpaid medical
expenses, costs associated with independent medical insurance premiums,” and costs associated
with Americans with Disabilities Act-complaint housing and “medical support requirements.”
Compl., Nov. 30, 2010, D.E. 2, at 2.
Plaintiff alleged that after he had spinal surgery in 2007, Defendants “willfully,
repeatedly and adversely” interfered with Plaintiff’s “health care and recovery,” “physical
disability status and legal eligibility for Social Security Disability (extended term) benefits under
the Social Security Act,” “legal eligibility for COBRA Health Insurance in accordance with the
Social Security Act of 1935 and the Medicare Act of 1965,” “legal medical insurance coverage,”
and “legal right to independent medical coverage under the 2010 Recovery Act’s COBRA
Health Insurance Continuation Premium Subsidy.” Id. ¶¶ 1-3, 5-6. Plaintiff also alleges that
Defendants “willfully, repeatedly and adversely” “violated Plaintiff’s rights and protections
under the Americans with Disabilities Act of 1990,” and “provided and used false information in
order to deny Plaintiff’s legal medical insurance coverage.” Id. ¶¶ 4, 7.
On February 17, 2011, Plaintiff moved to amend his original Complaint. Pl.’s. Mot. to
Amd. Compl., Feb. 17, 2011, D.E. 12. Plaintiff’s 292-page Amended Complaint modified the
amount sought in damages from $2,000,000 to $2,092,375. Amended Compl., Feb. 17, 2011,
D.E. 13, at 2. It also provided a lengthy account of Plaintiff’s surgeries, treatments, procedures,
hospitalization, physical ability, rehabilitation, and his relationships with each of the Defendants.
Id. at 3-11. It also alleged that Plaintiff’s ex-wife did not support or accommodate him during
his recovery, leading to their divorce and various obstacles in obtaining employment and health
insurance coverage for crucial medical treatment. Id. Plaintiff also alleged that interference by
RHI, Meritain, GEICO, PPS, Feldman, Ardron, Fuge, and Spaventa, caused Plaintiff to fail to
obtain health insurance and COBRA benefits, and therefore forced him into significant medical
debt. Id. Plaintiff’s motion to amend the Complaint was granted on March 14, 2011. Order,
March 14, 2011, D.E. 14.
Between April 2011 and August 2011, the Defendants filed various motions to dismiss
the Amended Complaint, or to transfer it based on improper venue. Motions to Dismiss, May
10, 2011, D.E. 36, 40, 43, 47, 50; Motion to Dismiss, July 15, 2011, D.E. 88. On January 9,
2012, the Southern District of New York transferred the instant matter to this Court pursuant to
28 U.S.C. § 1406(a), and did not reach the motions to dismiss. Memorandum Order, Jan. 9,
2012, D.E. 165. This matter was then assigned to Judge Cavanaugh and Magistrate Judge
Once this matter was transferred to this District, all Defendants renewed their motions to
dismiss. Motion to Dismiss the Amended Complaint by Meritain and Quinlivan, Aug. 30, 2012,
D.E. 208; Motion to Dismiss Plaintiff’s Complaint by PPS, Aug. 30, 2012, D.E. 209; Motion to
Dismiss by RHI, Aug. 31, 2012, D.E. 210; Motion to Dismiss the Amended Complaint by
Nussbaum, Aug. 31, 2012, D.E. 211; Motion to Dismiss the Amended Complaint by Ardron,
Feldman, Fuge, GEICO and Spaventa, Sept. 4, 2012, D.E. 212; Motion to Dismiss by AWS and
Bremer, Sept. 5, 2012, D.E. 213.
On April 25, 2013, Judge Cavanaugh granted Defendants’ motions “without prejudice to
Plaintiff’s right to refile his Complaint within thirty days with more specificity as to each
Defendant so each may ascertain the claims asserted against him or her.” Opinion and Order,
Apr, 25, 2013, D.E. 227, 228. Judge Cavanaugh determined:
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.
Opinion, Apr, 25, 2013, D.E. 227, at 6-7. Judge Cavanaugh concluded that the Amended
Complaint made it impossible for Defendants to ascertain what the claims against them were,
and explained that “[a]lthough this Court is sensitive to the challenges a pro se litigant faces, the
Court cannot expect the Defendants to defend against claims that are not clearly and specifically
alleged.” Id. at 7. The District Court found that
[a]s 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.
Id. Accordingly, the Court held that “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.” Id. at 8.
Plaintiff sought, and was granted, a sixty-day extension to submit his Amended
Complaint. Order Granting Application/Petition to Resubmit Amended Complaint, May 14,
2013, D.E. 230. On July 26, 2013, Plaintiff filed his Second Amended Complaint. Amended
Complaint, July 26, 2013, D.E. 232. The Defendants again moved to dismiss. Plaintiff filed
oppositions to these motions on August 19, 2013 and September 4, 2013. Plaintiff also moved
for Judge Cavanaugh to recuse himself, which the Court denied. Opinion and Order Denying
Application/Petition for Recusal, Oct. 21, 2013, D.E. 269.
On October 10, 2013, Plaintiff filed a notice of medical leave or adjournment due to an
impending surgery. Notice of Medical Leave/Adjournment, Oct. 10, 2013, D.E. 268. On April
3, 2014, after Judge Cavanaugh retired, this matter was reassigned to District Judge Kevin
McNulty and the Undersigned. Order Reassigning Case, Apr. 3, 2014, D.E. 270.
On April 15, 2014, Judge McNulty granted Defendants’ motions to dismiss. Opinion and
Order, Apr. 15, 2014, D.E. 273 and 274. Judge McNulty observed:
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 11point type, 1½ spaced). (ECF No. 232). Attached to the SAC are 71 exhibits. The
paragraphs are not numbered. No individual causes of action are identified.
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.’
Id. at 7-8 (quoting Opinion, Apr, 25, 2013, D.E. 227, at 11-12). Judge McNulty concluded that
“[d]espite 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.” Id. at 9. Judge McNulty ordered that the dismissal
would be with prejudice “unless Plaintiff within 30 days of this Order submits a properly
supported motion to amend the Complaint under Fed. R. Civ. P. 15, and such motion is granted.”
Order, Apr. 15, 2017, D.E. 274.
On May 5, 2014, Plaintiff again moved to amend. D.E. 275. On May 22, 2014, Judge
McNulty directed all Defendants to respond to Plaintiff’s motion within thirty days, and directed
that “[s]uch papers should concentrate on the issue of whether permitting the amendment would
be “futile”— i.e., whether the 3AC [Third Amended Complaint] could survive a motion to
dismiss. See generally Foman v. Davis, 371 US 178, 182 (1962).” Memorandum/Order, May
22, 2014, D.E. 277, at 2. Judge McNulty also cautioned Plaintiff that “[t]he normally liberal
standard of amendment will be considered in light of the fact that this is not a first, but a third,
amended complaint.” Id.
Defendants opposed the motion to amend. On September 11, 2014, Judge McNulty
denied Plaintiff’s motion, finding that “the proposed third amended Complaint does not cure the
deficiencies in the Second Amended Complaint as discussed in the Court’s April 15, 2014
Opinion and Order granting Defendants’ motion to dismiss without prejudice (Docket Nos. 273,
274).” Order, Sept. 11, 2014, D.E. 287. Judge McNulty stated that the proposed Third Amended
fails to correct many of the deficiencies found in the 2AC.
To be sure, the P3AC makes certain improvements: for the first time, we find
numbered paragraphs; titled causes of action (e.g., “Cause of Action related to
Personal Injury and Negligence”); and incorporation by reference of factual
allegations under each titled cause of action. However, the P3AC ultimately
fails to plead facts sufficient to put any of the defendants on notice as to how
their actions could plausibly result in liability.
It is generally clear, for example, that Pushkin is aggrieved by his
ex-wife’s treatment of him, the expiration of COBRA health insurance he
enjoyed through his ex-wife’s employer, certain insurers’ failure to pay
claims, the conduct of his ex-wife’s attorneys, and so on. I have no reason to
doubt that Plaintiff’s physical injuries are causing him distress, that he feels
abused by his ex-wife’s lawyers, or that the aftermath of his divorce left him
without the benefit of the couple’s combined resources, including insurance.
Those circumstances, however, do not necessarily translate to a federal court
action against all of the many parties involved. Missing are allegations as to
who did what, and when, and what cause of action is asserted against each
There is also a “group pleading” problem. The final ten factual
allegations (P3AC ¶¶ 38-47) cite “the collective actions by all twelve
Defendants.” None of the numbered causes of action specifies the defendant
or defendants against which it is directed.
Opinion, Sept. 11, 2014, D.E. 286, at 9-10. Judge McNulty ordered that “this denial is without
prejudice to the filing of one more properly supported motion to amend the complaint.” Order,
Sept. 11, 2014, D.E. 287.
On October 15, 2014, Plaintiff again moved to amend. Motion to Amend/Correct Third
Amended Compl., Oct. 15, 2014, D.E. 288. Defendants again opposed the motion. Plaintiff
requested, and received, numerous adjournments of his motion due to his medical condition.
Ultimately, Plaintiff filed his reply brief in support of his motion to amend on September 6,
2016. Reply Brief/Aff. in Support of Motion to Amend & Fourth Amended Compl., Sept. 6,
2016, D.E. 334.
The proposed Fourth Amended Complaint continues to suffer many of the same pleading
deficiencies as its predecessors. After careful scrutiny of the proposed Fourth Amended
Complaint, it appears that Plaintiff brings the following claims against the Defendants:
Plaintiff alleges a cause of action against his ex-wife, Nussbaum, for
personal injury and negligence;
Plaintiff seeks relief against GEICO, PPS, Fuge, Ardron, Spaventa and
Feldman for fraudulent concealment;
Claim Three: Plaintiff brings a cause of action against Nussbaum, RHI, Meritain,
GEICO and PPS for false claims and fraud;
Plaintiff asserts claims against Defendants Nussbaum, RHI, Meritain,
Quinlivan, Bremer, AWS, GEICO and PPS for negligent
Plaintiff brings claims against all Defendants for civil conspiracy and
Plaintiff alleges claims against Defendants Nussbaum, RHI, Meritain,
Quinlivan, Bremer, AWS, GEICO and PPS for breach of insurance
contract and breach of fiduciary duties, as well as for violations of relevant
state laws, regulations and statutes;
Claim Seven: Plaintiff asserts that Defendants Nussbaum, Bremer and AWS, GEICO
and PPS violated the Americans with Disabilities Act (“ADA”) and the
Persons with Disabilities Civil Rights Act of 1976 ("PDCRA");
Claim Eight: Plaintiff brings claims against Defendants Nussbaum, Bremer, AWS, RHI,
Meritain, GEICO and PPS for a violation/denial of his civil rights and
civil rights related to services, coverages, benefits and/or real and personal
Plaintiff alleges claims against Defendants Nussbaum, Bremer and AWS
related to denial of Social Security Disability Benefits.
Proposed Fourth Amended Compl., Oct. 15, 2014, D.E. 288.
The threshold issue in resolving a motion to amend is the determination of whether the
motion is governed by Rule 15 or Rule 16 of the Federal Rules of Civil Procedure.” Karlo v.
Pittsburgh Glass Works, LLC, No. 10-1283, 2011 WL 5170445, at *2 (W.D. Pa. Oct. 31, 2011).
Rule 15 states, in pertinent part, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “Rule 16, on the other hand, requires a party to demonstrate
‘good cause’ prior to the Court amending its scheduling order.” Karlo, 2011 WL 5170445, at *2
(citing Fed. R. Civ. P. 16(b)(4)). As the Court has not entered a scheduling order in this case,
Rule 15 governs the instant motion.
Under Rule 15(a)(2), a plaintiff may amend his complaint “when justice so requires.”
The Court may deny a motion to amend the pleadings only where there is (1) undue delay, (2)
bad faith or dilatory motive, (3) undue prejudice, (4) repeated failures to cure deficiencies, or (5)
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Long v. Wilson, 393 F.3d
390, 400 (3d Cir. 2004) (“We have held that motions to amend pleadings [under Rule 15(a)]
should be liberally granted.”) (citations omitted); Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002) (“Under Rule 15(a), if a plaintiff requests leave to amend a complaint . .
. such leave must be granted in the absence of undue delay, bad faith, dilatory motive, unfair
prejudice, or futility of amendment.”).
With respect to the instant motion, the Court focuses on Plaintiff’s failures to cure the
deficiencies in his pleadings, and whether the proposed amendments are futile. On at least two
separate occasions, the District Court has noted its concern with Plaintiff’s failure to cure
previously identified deficiencies. See, e.g., Opinion, Sept. 11, 2014, D.E. 286, at 9-10; Opinion,
Apr. 15, 2014, D.E. 273, at 7-8 (quoting Opinion, Apr. 25, 2013, D.E. 227, at 11-12).
Additionally, the District Court instructed the Defendants to focus on the futility of Plaintiff’s
proposed amendments in the October 13, 2014, Order [D.E. 289].
“Leave to amend a complaint is futile when the complaint as amended would still be
properly dismissed or immediately subject to summary judgment for the defendant.” Am.
Corporate Society v. Valley Forge Ins. Co., 424 F. App’x 86, 90 (3d Cir. 2011) (quoting
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)); see also 6 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (3d ed. 2010).
To determine whether an amendment would be “properly dismissed,” the Court employs
the standard applied to Rule 12(b)(6) motions to dismiss. In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Under this standard, the question before the Court is
not whether the movant will ultimately prevail, but whether the complaint sets forth “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (establishing that a “court
may dismiss a complaint only if it is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations”); Harrison Beverage, 133 F.R.D. at 468
(“‘Futility’ of amendment is shown when the claim or defense is not accompanied by a showing
of plausibility sufficient to present a triable issue.”). A two-part analysis determines whether this
standard is met. Fowler, 578 F.3d at 210 (citing Ashcroft v. Iqbal, 556 U.S. 662, 629 (2009)).
First, a court separates the factual and legal elements of a claim. Fowler, 578 F.3d at
210. All well-pleaded facts set forth in the pleading and the contents of the documents
incorporated therein must be accepted as true, but the Court may disregard legal conclusions. Id.
at 210–11; West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n.6 (3rd Cir. 2010);
see also Iqbal, 556 U.S. at 678 (noting that a complaint is insufficient if it offers “labels and
conclusions,” a “formulaic recitation of the elements of a cause of action,” or “naked assertions”
devoid of “further factual enhancement”) (alterations omitted) (internal quotations marks
Second, as stated above, a court determines whether a plaintiff’s facts are sufficient “to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; accord Fowler,
578 F.3d at 211. As the Supreme Court instructed in Iqbal, “[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.” 556 U.S. at 678. The plausibility
standard is not a “probability requirement,” but the well-pleaded facts must do more than
demonstrate that the conduct is “merely consistent” with liability so as to “permit the court to
infer more than the mere possibility of misconduct.” Id. at 678–79 (citations omitted) (internal
quotation marks omitted). This “context-specific task . . . requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679.
A court conducting a futility analysis based only upon the sufficiency of the pleading
must consider a limited record. Specifically, a court may consider only the proposed pleading,
exhibits attached to that pleading, matters of public record, and undisputedly authentic
documents provided the claims are based on those documents. Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); accord West Penn, 627 F.3d at
97 n.6 (reiterating the rule and its limited exception for documents that are “integral or explicitly
relied upon in the complaint”).
On September 11, 2014, when Judge McNulty denied pro se Plaintiff’s motion for leave
to amend the Second Amended Complaint and file a Third Amended Complaint, he indicated
that “[t]his denial is without prejudice to the filing of one more properly supported motion to
amend the complaint.” Order, Sept. 11, 2014, D.E. 287. On October 30, 2014, Judge McNulty
directed Defendants to respond to the latest motion filed by pro se Plaintiff for leave to file the
Proposed Fourth Amended Complaint, indicating that all prior attempted amendments had
“failed to plead facts sufficient to put Defendants on notice as to how their actions could
plausibly result in liability” and that Defendants’ responses to Plaintiff’s motion to amend
‘should focus on the issue of whether permitting the amendment would be ‘futile’. . . . See
generally Foman v. Davis, 371 U.S. 178, 182 (1962).” Order, Oct. 30, 2014, D.E. 289. Judge
McNulty had previously cautioned pro se Plaintiff that the normally liberal standard applied to
pro se filings would be considered in light of the fact that Plaintiff had already had several
attempts to file a pleading that would survive a motion to dismiss. Memorandum/Order, May 22,
2014, D.E. 277.
Therefore, a necessary part of the Court’s consideration of Plaintiff’s current proposed
pleading is whether it cures the deficiencies that the District Court identified. However, the
Court finds that the proposed Fourth Amended Complaint neglects to cure many of the
deficiencies of the prior attempts and would not survive a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6).
Plaintiff has separated his allegations into nine separate claims and has listed the parties
against whom he brings each claim. However, Plaintiff again has failed to allege facts adequate
to place Defendants on notice regarding how their actions violated any law or statute so as to
render them liable to Plaintiff for damages. Like its earlier iterations, the proposed Fourth
Amended Complaint is conclusory in fashion, omits important factual allegations, and fails to
explain how the facts alleged violate the law. A glaring deficiency is the lack of facts
concerning the specific conduct of each Defendant. For example, Plaintiff uses such terms as
“conspiracy,” “coercion,” “interference” and “the submission of false claims[,]” but he fails to tie
these characterizations to the actions, or failures to act, of any particular defendant in order to
state a cognizable claim. Plaintiff fails to properly identify actionable conduct by each
Defendant because he does not identify what each Defendant did or failed to do, and how those
acts or omissions violated the law. Instead, Plaintiff continues to rely on impermissible group
pleading, notwithstanding the District Court’s admonishment in the last Opinion denying
Plaintiff’s amendment. Opinion, Sept. 11, 2014, D.E. 286, at 10 (“There is also a ‘group
pleading’ problem. The final ten factual allegations . . . cite "the collective actions by all twelve
Defendants." None of the numbered causes of action specifies the defendant or defendants
against which it is directed.”). Such group pleading is impermissible because it fails to put each
Defendant on notice of their specific actions which render them liable to Plaintiff. Without
more, it is impossible for Defendants to mount a defense.
For example, in Claim I, Plaintiff asserts allegations against his ex-wife, Defendant
Nussbaum, for “personal injury and negligent action.” Proposed Fourth Amended Compl., Oct.
15, 2014, D.E. 288, 22-25. Plaintiff alleges that on August 28, 2005, Defendant Nussbaum
dropped a heavy piece of furniture directly onto his back while assisting in re-assembling an
entertainment center which either caused or contributed to a lumbar spinal fracture. Id. at 22.
Plaintiff claims that this injury caused him to become permanently disabled. Id. Plaintiff asserts
that thereafter Defendant Nussbaum subjected him to repeated verbal abuse, forced him to
perform physical tasks that made his injury worse, and subjected him to an unsafe home
environment. Id. at 23. Plaintiff recounts two specific instances which he claims exacerbated his
medical issues. Id. at 24. One was an incident where sewage from his condominium building
backed up into his bathroom and once repaired, Defendant left him to clean up the bathroom and
himself in a 90-minute span before leaving for vacation. Id. The other concerns an incident
when Defendant Nussbaum required Plaintiff to clean snow and ice off of her parents’ vehicle.
Id. Plaintiff seeks damages against Nussbaum for this “negligent and abusive conduct” as well
as the allegation that “Defendant Nussbaum willfully and repeatedly denied legitimacy/validity
of Plaintiff’s injury.” Id. at 25. Putting aside the likely statute of limitations issue, 1 Plaintiff
fails to state a cognizable claim, other than a general complaint that his wife lacked sympathy for
his injury. The Court and parties should not have to guess at the duty of care that Plaintiff’s
claim vaguely implies Defendant Nussbaum breached, particularly given Plaintiff’s myriad
opportunities to cure his pleading.
Additionally, it appears that any state law claim that Plaintiff might seek to bring
against Defendant Nussbaum based on allegations of personal injury and negligence would be
barred by the two-year statute of limitations that governs such actions. See Brown v. Foley, 810
F. 2d 55, 56 (3d Cir. 1987). The alleged incidents happened well more than two years before
Plaintiff filed the instant action: Plaintiff allegedly dropped the furniture on Plaintiff in 2005 and
the other two incidents occurred in 2008. Plaintiff and Nussbaum were divorced in 2010 and
there are no allegations that Defendant caused Plaintiff any harm within the two years before
Plaintiff filed the Complaint.
In Claims II, III and V, Plaintiff brings claims sounding in fraud. In Claim II, Plaintiff
alleges that Defendants GEICO, PPS, Fuge, Ardron, Spaventa and Feldmann “knowingly and
fraudulently concealed from Plaintiff, his physicians and his MVA attorney documented risk of
short-term and long-term brain and spinal cord injuries associated with repetitive traumatic
impacts sustained during MVAs,” “knowingly and fraudulently concealed from Plaintiff, his
physicians and his MVA attorney Independent Medical Examination ("IME") reports written by
Dr. Menachem Epstein . . . [which included a] diagnosis statement of: ‘Causal relationship of
accident to current lumbar pain is verified; which is superimposed on residual pain from a
previous major spinal procedure,’” and “these same Defendants voluntarily arranged for, funded
and produced other IME reports contradicting or misrepresenting Dr. Epstein's July 2008 IME
report in order to mislead and conceal material facts and information with the intent to defraud
Plaintiff and his medical providers as well as deceive a state-level governmental agency.” Id. at
The allegations in Claim III, which names Defendants Nussbaum, RHI, Meritain, GEICO
and PPS, are identical to those found in Claim II, except Claim III removes some Defendants
while adding others. Id. at 39-41. In Claim V, Plaintiff alleges that all Defendants acted in
concert to fraudulently conceal the above information from him. Id. at 49-52. These claims are
patently deficient under Federal Rules of Civil Procedure 8 and 9. To plead a claim based on
fraud, a plaintiff must meet the heightened pleading requirements of Federal Rule of Civil
Procedure 9(b). See Fed. R. Civ. P. 9 (“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake”). A plaintiff alleging fraud must
state the circumstances of the alleged fraud with sufficient particularity to place the defendant on
notice of the “precise misconduct with which [it is] charged.” Frederico v. Home Depot, 507
F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. Bank of Am., 361 F.3d 217, 223–24 (3d Cir.2004))
(internal quotations omitted). To satisfy this standard, the plaintiff “must plead or allege the
date, time and place of the alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation.” Id.
Plaintiff completely fails to allege the essential elements of a claim for fraud such that he
does not meet the pleading requirement of Fed. R. Civ. P. 8, let alone the more heightened
pleading standard of Rule 9(b). For example, in Claim IV, Plaintiff alleges that Defendants
Nussbaum, RHI, Meritain, Quinlivan, Bremer, AWS, GEICO and PPS “made material
misrepresentations on multiple occasions to Plaintiff, his physicians, his attorney, and multiple
state and/or federal agencies . . . regarding the true and full nature and extent of Plaintiff’s
injuries, orthopedic and neurological conditions/impairments” and “misrepresented the dangers
Plaintiff faced in all daily life activities.” Id. at 42. Plaintiff asserts other material
misrepresentations made by Nussbaum, and her attorneys, Bremer and AWS, such as: (1)
misrepresentations made by Nussbaum regarding her financial records in her complaint for
divorce, while also accusing Plaintiff of “concealing windfall assets related to his January 2008
MVA;” and (2) misrepresentations by Bremer and AWS regarding how long Plaintiff and
Nussbaum had been living separately before filing for divorce. Id. at 45-48.
Plaintiff’s claim regarding negligent misrepresentation fails to state a claim because
Plaintiff lumps the Defendants together, and neither attributes specific misrepresentations to any
one Defendant, nor explains how all of the defendants to the claim are responsible for any
particular misrepresentation. Although the negligent misrepresentation claim is replete with
conclusions, it fails to explain the necessary facts to satisfy the elements of the cause of action.
For example, Plaintiff fails to allege: 1) the special relationship between Plaintiff and each
Defendant named; 2) the nature, extent and content of the misrepresentations; 3) who made the
misrepresentations and to whom they were made; 4) the dates of the misrepresentations; 5) what,
if any, damages he sustained as a result of the misrepresentations; and 6) how he relied on the
misrepresentations to his detriment. Plaintiff’s claim for negligent misrepresentation as to
Nussbaum and her attorneys, Bremer and AWS, is similarly deficient. Plaintiff has had four
chances to amend this claim to include the details of the alleged misrepresentations by
Defendants but Plaintiff again fails to do so.
In Claim VI, Plaintiff names Nussbaum, RHI, Meritain, Quinlivan, Bremer, AWS,
GEICO and PPS as Defendants. Id. at 52-69. However, the substantive allegations within this
claim, as well as the prayer for relief, demonstrate that this claim is brought solely against
Defendants Nussbaum, RHI and Meritain. Id. This claim consists of two core allegations: 1)
Defendants failed to provide Plaintiff with proper notice regarding continuing his healthcare
benefits under COBRA; and 2) Defendants RHI and Meritain violated Plaintiff’s rights under
New Jersey’s personal Injury Protection laws (“PIP”) for filing a faulty lien against Plaintiff’s
suit stemming from a January 28, 2008 motor vehicle accident. Id. Plaintiff’s claim that
Defendants failed to provide him with proper notice of COBRA continuation coverage fails to
state a claim because it is clear from Plaintiff’s own allegations in the Complaint that he was
afforded notice of his rights and obligations under COBRA, including the requirement that he
pay premium payments once RHI was no longer making such payments. For example, Plaintiff
states in the proposed Fourth Amended Complaint that “Nussbaum verbally informed Plaintiff of
COBRA in November 2008 and shared copy of COBRA election form.” Id. at 54. Indeed, back
in 2011, in opposing Defendants’ Motion to Dismiss his Second Amended Complaint, Plaintiff
asserted that “[b]oth Beth Nussbaum and the Plaintiff were aware of the monthly premium
amounts associated with individual coverage, as indicated in the COBRA agreement signed in
November 2008 (Exhibit D).” Plaintiff’s Opposition to Defendants’ Motion to Dismiss Second
Amended Complaint, May 9, 2011, D.E. 57. Plaintiff also asserts in the proposed Fourth
Amended Complaint that in August 2009, roughly a month before the cessation of COBRA
coverage, he was speaking to an employee of the New Jersey Department of Banking and
Insurance regarding extending COBRA coverage. Proposed Fourth Amended Compl., Oct. 15,
2014, D.E. 288, 60-61. Yet, Plaintiff now attempts to assert a claim against Defendants
Nussbaum, RHI and Meritain for failure to cease COBRA coverage when Plaintiff did not make
those premium payments. Plaintiff fails to reconcile the contradiction, and he cannot bring a
claim against Defendants where his own allegations reveal he had indeed received notice
regarding continuing COBRA coverage. Accordingly, this claim fails.
Plaintiff’s claim pursuant to PIP also fails to state a claim. Plaintiff fails to indicate how
the filing of a faulty lien violated PIP, how he was harmed, and what damages he suffered. It is
little more than a collection of conclusory statements, and therefore fails to satisfy the
Claim VII is brought against Defendants Nussbaum, Bremer, AWS, GEICO, and PPS
pursuant to the ADA. But Defendants are not government entities, covered employers or
maintainers of public accommodations. Id. at 69-73. It bears noting that the District Court
previously informed Plaintiff, in its September 11, 2014 Opinion, that none of his claims fell
within the purview of the ADA. 2 See Opinion, Sept. 11, 2014, D.E. 286, at 14.
The same is true of Plaintiff’s reliance, in Count VI, on the Social Security Act and the
Medicare Act of 1965. The District Court informed Plaintiff that these statutes “bear no obvious
relation to the allegations.”
Claim VIII sets forth a civil rights claim against most of the Defendants, presumably
pursuant 42 U.S.C. §§ 1982, 1985 and 1986 (as these civil rights statutes are listed in the front of
Plaintiff’s proposed Fourth Amended Complaint). However, Plaintiff fails to allege that he was
suffered discriminated based on his race, as required by 42 U.S.C. § 1982, or that Defendants
were state actors, as required by 42 U.S.C. §§ 1985 and 1986. Id. at 73-76. Because Plaintiff
has failed to allege these threshold requirements for relief under the civil rights laws, Plaintiff’s
Claim VIII for a violation of his civil rights fails to state a claim for relief.
Finally, in Claim IX, Plaintiff alleges that Defendants Nussbaum, Bremer, and AWS
acted to deny him social security benefits. Id. at 76-80. However, there are no substantive
allegations against Bremer and AWS in this claim. Id. Plaintiff asserts that he was denied social
security disability benefits for a twenty-five-month period, from November 22, 2006 to
December 31, 2008, because Nussbaum nagged him so much about not working that he returned
to teaching, thereby causing him to lose disability benefits. Id. This claim plainly fails to state a
cognizable cause of action.
Accordingly, the Court concludes that the proposed Fourth Amended Complaint fails to
state any viable claim against any Defendant, and that permitting its filing would be futile.
For the reasons stated herein, Plaintiff’s motion for leave to file the proposed Fourth
Amended Complaint is denied. The Court will issue an Order consistent with this Opinion.
s/ Michael A. Hammer____________________
UNITED STATES MAGISTRATE JUDGE
Dated: April 28, 2017
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