MASRI, M.D. v. HORIZON HEALTH CARE SERVICES, INC., et al

Filing 24

OPINION. Signed by Judge Kevin McNulty on 9/18/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SAMMY MASRI, M.D., et aL,

Civ. No. 16-696 1 (KM) (JBC)

Plaintiffs,
OPINION
V.

HORIZON HEALTHCARE SERVICES,
INC., d/b/a HORIZON BLUE CROSS
BLUE SHIELD OF NEW JERSEY, et
al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiffs, The Center for Sport Medicine and Weilness LLC, Sammy I.
Masri, LLC, and SlIM Holdings, LLC (collectively, “Masri Sports”),’ bring this
action against Horizon Healthcare Services, Inc. (“Horizon”), Non-New Jersey
BCBS Plans 1—10, and John Does 1—10. Masri Sports seeks to recover no less
than 5411,932.00 in denied reimbursements arising from medical services
provided to Horizon insureds. (AC

¶

3.)2

The original complaint named Sammy I. Masri, M.D. as the sole plaintiff. (Cplt.
passim.) The three Masri Sports entities were named as co-plaintiffs in the amended
complaint, which was filed after and in response to the motion to dismiss. (AC 1.)
Footnote 1 of plaintiffs’ suneplv brief contains a concession that the Mash Sports
entities are the proper plaintiffs, and consents to a voluntary dismissal of Mash
himself. (P1. Sur. 4, n. 1.)
I

2

Record items cited repeatedly will be abbreviated as follows:
“AoB”
“AC”

=

Amended Complaint (ECF No. 16)

=

“Cplt.”

Assignment of Benefits Form, Exhibit A to Complaint (ECF
No. 1, ex. B)

=

Complaint (ECF No. 1)
1

Multiple revisions of positions have resulted in a shifting set of issues.
The six currently operative counts are:
Count I: Claim for benefits under ERISA;
Count II: Breach of the fiduciary duties under ERISA;
Count III: Failure to comply with ERISA claims regulations;
Count VI: Breach of contract;
Count VII: Breach of the covenant of good faith and fair dealing;
Count X: Quantum meruit.3

Horizon has moved under Fed. R. Civ. P. l2(b)(6)4 to dismiss those six
currenilv operative counts. Horizon contends that Masri Sports, a provider of

“Def. Br.”

“Def. Reply”

“P1. Br.”

=

“P1. Sur.”

Defendant’s Brief in Support of Motion to Dismiss for Lack
of Standing and for Failure to State Claims upon which
Relief Can Be Granted (ECF No. 10)

=

=

=

Defendant’s Reply Brief in Further Support of Motion to
Dismiss for Lack of Standing and for Failure to State
Claims upon which Relief Can Be Granted (ECF No. 18)
Brief in Opposition to Defendant’s Motion to Dismiss (ECF
No. 17)
Brief in Sur-Reply to Defendant’s Motion to Dismiss (ECF
No. 23)

Masri Sports states that it will voluntarily dismiss the following claims:
declaratory relief based on violations of ERISA (Count IV), promissory estoppel (Count
VIII), and unjust enrichment (Count IX). (P1. Sur. 11, 13—14.) The plaintiff is master of
its complaint, and will not be forced to pursue claims; it is not controversial that such
an application will be granted. Count V is merely a claim for attorney’s fees, and is
more in the nature of a prayer for relief. No action is required unless and until plaintiff
prevails on one or more claims.
On the other hand, in a footnote to a surreply brief, Masri Sports seeks to add a
claim for statutory penalties pursuant to 29 U.S. § 1132(a)(l)(A) and 1132(c)(1). I will
not consider that request; if Masri wishes to amend its complaint, it should make a
properly supported motion in compliance with Fed. R. Civ. P. 15, following the
procedures prescribed by Local Civil Rule 15.1.
Horizon explains that it moved to dismiss under Fed. R. Civ. P. l2(b)(1) for lack
of jurisdiction—specifically, lack of standing. (Def. Br. 1; Def. Reply 1.) A party’s
derivative status to pursue a claim under ERISA has been deemed a merits-based
issue, suitable for consideration on a Rule 12(b)(6) motion. N. Jersey Brain & Spine
Ctr. v. Aetna, Inc., 801 F.3d 369, 371 n. 3 (3d Cir. 2015). This technical correction has
no practical consequences; under either rule, the analysis of a facial attack on the
complaint is similar.
2

medical care, lacks statutory derivative standing to pursue its claims, and also
asserts that certain of the individual claims are insufficiently pled. For the
reasons stated herein, I will grant Horizon’s motion to dismiss Count III, but
deny it as to Counts I, II, VI, VII, and X.
Background

I.

The allegations of the amended complaint are taken as true for the
purposes of Horizon’s motion. See Section II.a, infra.
Masri Sports specializes in the diagnosis and treatment of non-surgical
sports and other musculoskeletal injuries. It operates out of three locations in
northern New Jersey. (AC

¶{

6—9.) Horizon is a not-for-profit health service

corporation that underwrites or administers the health insurance benefits of
more than 3.6 million insureds in New Jersey, a majority’ of which are governed
by the Employment Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C.

§

1001 et seq. (Id.

111

18, 20.) Horizon provides its insureds with access

to covered services primarily (though not exclusively) by utilizing a network of
health care providers who have contractually agreed to participate on a fixedfee basis. It reimburses its insureds for these covered services, subject to the
terms, conditions, and benefit limitations set forth under its various plans. (Id.

¶{

18, 22.)
The plans at issue in the complaint, however, also provide for “out-of-

network” benefits, under which the insured have a right to insurance benefits
for services provided by healthcare providers who have not entered into
“Participating Provider” agreements with Horizon. These out-of-network
providers have not agreed to accept Horizon’s contractual fee schedule when
providing covered servicers to Horizon insureds, but are still entitled to be
reimbursed at “usual, customary, and reasonable” rates. (Id.

¶

23.)

Masri Sports was an out-of-network or “Non-Participating” provider when
it treated the Horizon-insured patients at issue in the complaint. (Id.

¶

24.)

Masri Sports provided health care services to these insureds and expected to be
paid by Horizon for providing these services. (Id.
S

¶

25.)

Masri Sports required each of those insured patients to sign an
assignment of benefits (“AoB”) form. (Id.

¶

27.) The AoB form reads as follows:

1. 1 hereby assign to MASRI Sports Medicine & Weilness my rights to
receive payments from negligent parties or from insurance companies
responsible for my claim.
2. I also hereby authorize direct payments to MASRI Sports Medicine &
Weilness of any sum I now or hereafter owe you by my attorney our
[sicj of any proceeds of any settlement of my case and by any
Insurance company obligated to make payment to my Lsic] or you
based in whole or in part upon the charges made for your services.
3. 1 also hereby assign to MASRI Sports Medicine & Weliness all of my
rights to obtain payment under the personal injury protection
provisions of an automobile insurance policy or any other health
insurance policy of any medical bills incurred as a result of my
treatment, including the option to submit any dispute in my name to
binding arbitration under the auspices of the National Arbitration
Forum or any other forum that the provider deems appropriate.
4. I acknowledge and understand that although this office will file claims
with my insurance carrier as a courtesy, I am ultimately responsible
to pay for the services rendered. I am responsible for any co
insurance, deductibles, out of network costs or those services which
my carrier deems non-covered. I permit a copy of this authorization to
be used in place of the original for the purpose of obtaining payment
from my insurance company.
5. Attention Insurance Carrier: If applicable under your policy, you are
hereby asked for your consent to the form and content of this
Assignment Authorization and the resulting legal rights insured to
MASRI Sports Medicine & Wellness. Failure to deny your approval on
reasonable grounds within 72 hours of receipt of this request
constitutes your approval of this Assignment.
THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS
UNDER THIS POLICY.
(A0B.)
The services at issue that Masri Sports rendered to its patients include,
among other things, EMG/NCV testing, surgical procedures, office visits, and
injections. Horizon denied the requests of Masri Sports to be reimbursed for
those services (Id.

¶3f

46—47.) Masri Sports claims that Horizon has failed to

provide it with information it requested, including the following: contact
information for the plan administrator, claims administrator, fiduciaries, and
4

third party administrators involved in the claims process, copies of the
insurance policy, the Summary Plan Description, and the Plan, the Evidence of
Coverage, and plan claims procedures. (Id.

¶

55—56.) Masri Sports alleges that

it appealed these denials of claims within Horizon and exhausted its
administrative remedies. Horizon allegedly issued only blanket denials, stating
that the services were not medically necessary or not covered under the
Insureds’ plans. (Id.

¶

57.)

Masri Sports filed this action against Horizon on October 11, 2016. (Cplt.
32.) Horizon filed its motion to dismiss on January 12, 2017. (ECF no. 10.) The
plaintiffs filed a response, but also filed an Amended Complaint. (ECF nos. 16,
17.) Horizon then filed a reply. (ECF no. 18) Magistrate Clark ordered that the
motion to dismiss would be considered in relation to the complaint in its
amended form, and authorized the plaintiffs to file a surreply, which they did.
(ECF nos. 22, 23.)
II.

Discussion and Analysis
a. Standard on Rule 12(b)(6) motion

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462,
469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts
alleged in the complaint are accepted as true and all reasonable inferences are
drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v.
Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to

relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,

712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the p’aintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[tihe plausibility standard is not akin to a ‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
b. Assignment of Benefits and Statutory Derivative Standing

Section 502(a) of ERISA grants “a participant or beneficiary” of a covered
plan standing “to recover benefits due to him under the terms of his plan.” 29
U.S.C.

§

1132(a). It is now clear, however, that healthcare providers may obtain

derivative standing to sue from a participant or a benefician’ by assignment.
CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 176 n. 10 (3d Cir. 2014);
see also N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 372 (3d Cir.
2015) (“We hold as a matter of federal common law, when a patient assigns
payment of insurance benefits to a healthcare provider, that provider gains
standing to sue under ERISA

§

502(a).”). To determine the scope of claims that

a healthcare provider may bring under ERISA, courts look to the language of
the assignment. Ctr. for Orthopedics & Sports Med. v. Horizon, No. 13-1g63,
2015 WL 5770385, at *4 (D.N.J. Sept. 30, 2015) (citing Eden Surgical Ctr. u. B.
Braun Med., Inc., 520 F. App’x 696, 697 (9th Cir. 2011)).
The parties do not dispute that the AoB grants Masri Sports standing to
sue on behalf of its patients for the recovery of payments. (See Def. Reply 3—4
n. 1) Horizon argues, however, that the AdS is limited to claims for recovery of
“payments”; it does not convey the right to seek any other relief under ERISA.
What that means in practical terms, implies Horizon, is that Masri Sports is
authorized to pursue only Count I of the Amended Complaint; the AoB does not
give Masri Sports standing “to bring fiduciary duty claims or seek declaratory

6

or injunctive relief or penalties on behalf of the patient.” (Id.; see also Def.
Reply 2, 4.)
Masri Sports relies chiefly on the AoB language in “all caps” (“THIS IS A
DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER THIS POLICY”).
This sentence, says Masri Sports, is a broad assignment transferring all rights
to sue that the Horizon insureds possessed under the policy. (P1. Sur. 3—8.)
In Ctr. for Orthopedics, supra, the court reasoned that an assignment
limited in the fashion suggested by Horizon here would surely have read
differently; had “the assignment only directed [the insurer] to send checks to
[the healthcare provider], the assignment would only [have] include[d} the right
*5 And
to receive the payment of insurance benefits.” 2015 WL 5770385, at
indeed, where the language of an assignment has been so limited, the courts
have correspondingly limited the scope of the assignee providers’ standing to
sue. See, e.g., Bloomfield Surgical Ctr. v. Cigna Health & Life Ins. Co., No. 168645, 2017 WL 2304642, at

*

2 (D.N.J. May 25, 2017) (finding the assignment

of “all my rights and benefits under any insurance contacts for payment for
service rendered to me” and the right to “enter legal or other action on my
behalf.

.

.

to collect such sums due” to be too narrow to allow for standing to

include the full array of rights under ERISA); Premier Health Ctr., PC z.’. United
Health Grp., 292 F.R.D. 204, 2 19—20 (D.N.J. 2013) (denying doctor standing to
pursue injunctive relief where the assignment “assign[edj directly to [the
doctor] all insurance benefits, if any, otherwise payable to [patient] for the
services rendered”).5
But the language of the assignment in Ctr. for Orthopedics was not so
limited; it was far broader, as that court recognized. True, that assignment
authorized direct payment to the health care provider, but it also provided that
“THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER

Premierwarned of unintended potential harm to the rights of patients: “[Ti o
allow a healthcare provider to assert ERISA claims outside the logical scope of an
assignment from a subscriber would unknowingly deprive the subscriber of standing
to assert those claims in the future.” Id.
5

7

THIS POLICY.” 2015 WL 5770385, at 5. Ctr.for Orthopedics held that this
“broad assignment” conferred upon the healthcare provider the right to pursue,
not just payment of benefits, but also statutory penalties under
ERISA. Id. at *5

§

502(c)(1)(B) of

Masri Sports’ AoB is indistinguishable from the one interpreted by Judge
Hayden in Ctr. for Orthopedics. Masri Sports’ AoB, at one point, explicitly
assigns the “rights to receive payments

.

.

.

from insurance companies

responsible for (the insured’s] claim.” But it also contains the broad language
in “all caps” stating that “THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS
AND BENEFITS UNDER THIS POLICY.” That all-inclusive language of
assignment, identical to that in Ctr. for Orthopedics, is not accompanied by any
limiting language. (AoB.) Like Judge Hayden, I hold that this language is broad
enough to encompass claims for relief other than just payment of benefits. See
also Shah v. Horizon Blue Cross Blue Shield, No. 15-8690, 2016 WL 4499551,
at *7_s (D.N.J. Aug. 25, 2016) (finding the assignment of “all of [the
Participant’s] rights and benefits under [her] insurance contract for

services

rendered to [her]” sufficient to survive a motion to dismiss claims for violations
of fiduciary duty).
This case is not one in which the language of the assignment limits the
scope of claims the assignee may assert. By using broad language in the AoB,
Masri Sports obtained from its patients the right to pursue claims beyond the
collection of insurance benefits. I therefore hold that Masri Sports has obtained
derivative statutory standing to pursue the claims in the Amended Complaint.
c. Breach of Fiduciary Duty
Horizon moves to dismiss Count II (breach of fiduciary duty) for failure to
state a claim. Horizon contends that Count II is unsupported by sufficient
factual allegations, that it is redundant, and that it is legally flawed because
502 does not provide a remedy for “individual injuries” as distinct from “plan
injuries.” (Def. Br. 8.)

8

§

The “plan injury” point I set aside.6
The “redundancy” argument boils down to a contention that Count II is
impermissibly duplicative of Count I. The structure of § 502 of ERISA suggests
that the “catchall” provisions providing for “appropriate equitable relief’ for
“any-” statutory violation are meant to act as a safety net, allowing equitable
relief for injuries that

§ 502 does not otherwise adequately remedy.

Varity Corp.

u. Howe, 516 U.S. 489, 512 (1996). I accept that these classes of claims may be
considered alternatives; I do not think, however, that Varity precludes the
assertion of both

§ 502(a)(1)(B) and 502(b) claims at the pleading stage. See

*3
Lipstein v. United Healthcare Ins. Co., No. 11-1185, 2011 WL 5881925, at
*9
(D.N.J. Nov. 22, 2011); but see Shah v. Horizon, 2016 WL 4499551, at
(noting that the circuits and the district itself are still split as to the effect of
Varity on a plaintiffs ability to simultaneously pursue both benefits claims and
fiduciary duty claims under

§ 502).

I will not now dismiss Count II as being impermissibly duplicative of
Count I. Without some factual context, it is simply too early to tell whether
either one, or neither, is appropriate. See, e.g., Shah v. Horizon, 2016 WL
4499551, at *9 (“In Defendant’s view, the breach of fiduciary duty claim is
duplicative of [a

§ 502(a)(1)(B) claim] and must be dismissed. [Tjhe Court finds

this argument to be premature at this early juncture.”); Martin v. Prudential Ins.
Co. of Am., No. 12-6208, 2013 WL 3354431, at *9 n.5 (D.N.J. July 2, 2013)
(“Varity does not mandate dismissal of [a fiduciary duty] claim at the motionto-dismiss stage simply because Plaintiff also brought a

§ 502(a)(1)(B) claim.”);

Segura u. Dr. Reddy’s Labs., Inc., No. 11-6188, 2012 WL 6772060, at*8 (D.N.J,
Dec. 21, 2012) (“At this early stage in the litigation, however, a complaint
pleading both wrongful denial of benefits and breach of fiduciary duty is not
duplicative, nor does it require that the Court strike one claim to uphold the
Masri Sports alleges that it is “su[ing in a representative capacity on behalf of
for relief with respect to breaches of fiduciary’
the individual Horizon Plans at issue
duties
(AC ¶ 93.) The potential vulnerabilities of this contention might be
revisited at the summary judgment stage.

6

.

.

.

.

.

.

.“

9

other.”); but see Cohen v. Indep. Blue Cross, 820 F. Supp. 2d 594, 607—08
(D.N.J. 2011) (finding a recovery of benefits claim and breach of fiduciary claim
“impermissibly duplicative” where plaintiff merely alleged erroneous calculation
*4
of plan benefits); Zahl v. Cigna Corp., No. 09-1527, 2010 WL 1372318, at
(D.N.J. Mar. 31, 2010) (finding same where plaintiff did make separate, distinct
allegations from the recovery claim).
Here, Masri Sports makes fiduciary-breach allegations that are sufficient
under Twombly/Iqbal pleading standards, and are at least potentially distinct
from its
(AC

§ 502(a)(lflB) claim that Horizon wrongfully denied claims for benefits.

¶9 76—84.) For example, Horizon allegedly issued “blanket denials” without

sufficient explanation, despite a record showing the necessity for treatment,
and engaged in “extreme and unjustified delays.” (AC

¶9 99, 101.)

In the ordinary course, a party is entitled to plead claims in the
alternative. See Fed. R. Civ. p. 8(d).7 It would be “antithetical to the spirit of
liberal pleading rules” to force Masri Sports to elect, dropping potentially
meritorious claims in favor of others that may turn out not to be meritorious.
Bell v. Guardian Life Ins. Co., No. 08-1629, 2008 WL 4852840 (D.N.J. Nov. 6,
*3
2008) (quoting Parente v. Bell At!. Pa., No. 99-5478, 2000 WL 419981, at
(ED. Pa. Apr. 18, 2000)). Sorting out the merits of these claims is best left to
discovery and summary judgment.
I will therefore deny the motion to dismiss Count II.

(2) Alternative Statements of a Claim or Defense. A partx’ may set out 2 or
more statements of a claim or defense alternatively or hypothetically,
either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is
sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many separate
claims or defenses as it has, regardless of consistency.
Fed. I?. Civ. P. 8(d)(2), (3).
10

d. Violation of Claims Processing Regulations

Count III alleges that Horizon failed to comply with ERISA Sections 503
and 505, 29 U.S.C.

§

1133 & 1135, and regulations promulgated thereunder,

concerning the processing of claims. Horizon, it alleges, violated requirements
that employee benefit plans provide adequate notice of denials of claim and
afford a reasonable opportunity for full and fair review of such denials. (AC

¶

110) Horizon argues that this claim should be dismissed because those
provisions do not confer a private right of action.
Sections 503, 505, and the relevant accompanying regulations do not
explicitly set forth any cause of action, but rather promulgate basic
requirements for ERISA claims procedures and administration. Miller v. Am.
Airlines, Inc., 632 F.3d 837, 850—51 (3d Cir. 2011). Cases within this district
have consistently held that

§

503 and 505 and their accompanying

regulations do not bestow a private right of action on plan participants. Shah v.
Horizon, 2016 WL 4499551, at *11 (dismissing a claim brought under 29
C.F.R. §2560.503-1 with prejudice because the regulation did not provide a
private right of action); Drzala v. Horizon Blue Cross Blue Shield, No. 15-8392,
2016 WL 2932545, at *6 (dismissing a claim for failure to maintain reasonable
claims procedures under 29 C.F.R. §2560.503-1 and finding no distinction
between ERISA procedures claims brought directly under ERISA

[

503] and

those brought pursuant to the applicable regulation); Galman v. Sysco Food
Sews, of Metro N.Y., LLC, No. 13-7800, 2016 WL 1047573, at *5 n.4 (D.N.J.
Mar. 16, 2016), affd 674 Fed. App’x 211 (3d Cir. 2016) (noting that

§

503 does

not create an independent right of action for obtaining plan documents);
Thscopo v. Pub. Sew. Elec. & Gas Co., No. 13-552, 2015 WL 3938925, at *5
(D.N.J. Mar. 16, June 25, 2015), aff’d 650 Fed. App’x 106 (3d Cir. 2016)
(dismissing a claim for failure to provide a full and fair review under

§

503 with

prejudice); Cohen v. Horizon Blue Cross Blue Shield of N.J., No. 13-3057, 2013
WL 5780815, at *9 (D.N.J. Oct. 25, 2013) (same).

11

Masri Sports backtracks in its surreply, saying that Count III is “not
seeking legal relief/’ but rather “relief from administrative burdens.” (P1. Sur.
10.) That seems to be a reference to Masri Sports’ contention that its
administrative remedies “should be deemed exhausted or [the requirement of
administrative exhaustionj excused” on grounds of futility or inadequate
procedures. (See AC

¶11

115—17.) Exhaustion of remedies, however, is not an

independent cause of action; it is a condition precedent to the assertion of
other claims. Similarly, violations of those regulatory standards may be
probative of whether a decision to deny benefits was arbitrary and capricious.
Cohen, 2013 WL 5780815, at *9 (quoting Miller, 632 F.3d at 851). That is not to
say, however, that such violations are themselves actionable.
I will therefore grant Horizon’s motion to dismiss Count III.
e. Contract Claims/Quantum Meruit

Counts VI, VII, and X assert related claims for breach of contract, breach
of the implied covenant of good faith and fair dealing, and quantum meruit. By
their explicit terms, they are pled in the alternative; they apply only to the plan
is not an ERISA plan, or claims are not preempted by ERISA. (AC ¶j 139, 148,
155.) The “contracts” in question seems to be those between Horizon and its
insureds; the quantum meruit claim involves the value of services rendered by
Masri Sports to its patients. (E.g., AC

¶

62, 139—46, 151.)

This is an ERISA case about an ERISA plan, as Horizon appears to
concede. These state-law claims are very likely preempted, and therefore
redundant. Still, a party is not required to place itself at peril of guessing
wrong. A plaintiff may plead in the alternative, see Fed. R. Civ. P. 8(d), quoted
at 10 n.7, supra, and Horizon has not yet answered or asserted any matters in
defense. I will therefore leave these claims intact against the possibility that the
ERISA claims fail, or ERISA coverage takes on an unexpected scope, in the
process of discovery and summary judgment. See Weller v. Linde Pension
Excess Program, No. 16-4245, 2017 WL 399206, at *6 (D.N.J. Jan. 30, 2017)

12

(declining to address preemption issue and therefore denying motion to dismiss
a breach of contract claim).
Horizon’s motion to dismiss the claims of breach of contract, breach of
the implied covenant of good faith and fair dealing, and quantum meruit
(Counts VI, VII, and X) is therefore denied.

CONCLUSION

For the reasons set forth above, Horizon’s motion to dismiss the
Amended Complaint under Fed. R. Civ. P. 12(b)(6) is GRANTED IN PART AND
DENIED IN PART, as follows:
(1) The motion to dismiss is DENIED as to the ERISA claims for benefits
(Count I) and breach of fiduciary duty (Count II), as well as the statelaw claims of breach of contract, breach of the implied covenant of
good faith and fair dealing, and quantum memit (Counts VI, VII, and
X).

(2) The motion to dismiss is GRANTED as to the claim of violations of
claims processing regulations (Count III).
(3) Counts IV, VIII, and IX are voluntarily dismissed by plaintiffs.
An appropriate Order is filed herewith.

Dated: September 18, 2017

Kevin McNulty
United States District Judge

13