UNIVERSITY SPINE CENTER v. ANTHEM BLUE CROSS BLUE SHIELD
Filing
35
OPINION. Signed by Judge Katharine S. Hayden on 10/2/2019. (vm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNIVERSITY SPINE
assignment of Amy M.,
CENTER,
on
Plaintiff,
Civil No.: 17-11725 (KSH) (CLW)
v.
ANTHEM BLUE CROSS BLUE SHIELD,
Opinion
Defendant.
Katharine S. Hayden, U.S.D.J.
I.
Introduction
Plaintiff University Spine Center (“University Spine”) sued defendant Anthem
Blue Cross Blue Shield (“Anthem”) for reimbursement of medical services provided to
Amy M., a member of Anthem’s ERISA-governed health benefits plan (the “Plan”).
(D.E. 1 (“Compl.”).) Currently before the Court are various motions filed by the
parties, which were generated by the Third Circuit’s decision in American Orthopedic &
Sports Medicine v. Independence Blue Cross Blue Shield, 890 F.3d 445 (3d Cir. 2018). They
consist of (i) University Spine’s motion for leave to file an amended complaint (D.E.
17); (ii) Anthem’s cross-motion to dismiss the proposed amended complaint, and
alternatively, to disqualify University Spine’s counsel, Callagy Law, P.C. (“Callagy
Law”), and for attorneys’ fees and costs (D.E. 20); and (iii) University Spine’s cross-
motion for sanctions and attorneys’ fees and costs (D.E. 24). As set forth below, the
motions are denied.
II.
Background
On November 16, 2017, University Spine filed this lawsuit based on Anthem’s
alleged failure to “properly reimburse [it] for the medically necessary and reasonable
services provided to [Anthem’s] participant or insured” Amy M.
(Compl. ¶ 3.)
University Spine asserts three claims in the complaint: (i) failure to comply with the
emergency service cost sharing requirement of N.J.A.C. 11:4-37.3 (id. ¶¶ 18-21); (ii)
failure to make all payments pursuant to the Plan under 29 U.S.C. § 1132(a)(1)(B) (id.
¶¶ 22-30); and (iii) breach of fiduciary duty under ERISA, 29 U.S.C. §§ 1132(a)(3),
1104(a)(1), and 1105(a) (id. ¶¶ 31-39). University Spine maintains in the complaint that
it had derivative standing to pursue the ERISA claims pursuant to an assignment of
benefits from Amy M. (the “Assignment”). 1 (Compl. ¶ 25; see also D.E. 1-1, Ex. C
(“Assignment”).)
On January 19, 2018, Anthem filed a motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim upon which relief can be granted under Fed. R.
Civ. P. 12(b)(1) and 12(b)(6). (D.E. 6.) With respect to subject matter jurisdiction,
Anthem argued that University Spine did not possess derivative standing under ERISA
In North Jersey Brain & Spine Center v. Aetna, Inc., 801 F.3d 369, 372 (3d Cir. 2015)
(hereinafter “NJBSC”), the Third Circuit “h[e]ld that 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 for that payment under ERISA § 502(a).”
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because the Assignment it received from Amy M. was unenforceable and invalid as a
result of an anti-assignment clause in the Plan. (See D.E. 6-1 at 9 (“Due to the antiassignment provision, [University Spine] cannot do so, as a matter of law, because any
assignment of benefits is legally unenforceable and void.”).) On February 20, 2018,
University Spine filed its opposition raising various arguments as to why the
Assignment was valid and enforceable, including that the anti-assignment clause did not
limit Amy M.’s power to assign, the clause was not clear and unambiguous, and that
because University Spine was Amy M.’s healthcare provider, the anti-assignment clause
should be found inapplicable to it.2 (See generally D.E. 9.)
On May 16, 2018, while Anthem’s motion to dismiss was pending, the Third
Circuit issued a decision in American Orthopedic holding that anti-assignment clauses in
ERISA-governed health insurance plans are enforceable. 890 F.3d at 448. In that case,
appellant American Orthopedic and Sports Medicine (“American Orthopedic”)
performed surgery on its patient Joshua, who was covered by an ERISA-governed
health insurance plan issued by appellees (the “Insurers”). Following the surgery,
American Orthopedic, which did not participate in the Insurers’ network, charged
In its briefing on the motions addressed by this opinion, University Spine argues as if
Anthem’s original motion to dismiss (D.E. 6) is still pending before the Court. But that
motion was administratively terminated on December 3, 2018 (D.E. 19), after
University Spine filed its motion to amend. To the extent University Spine or Anthem
seek to incorporate any arguments raised in the papers on the motion to dismiss that
are not specifically addressed in the pending motions’ briefing, the Court will disregard
them as an end run around the page limit restrictions of L. Civ. R. 7.2.
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Joshua $58,400 because it was “not limited to the fee schedule prescribed by the
Insurers.” Id. American Orthopedic submitted a claim on behalf of Joshua to the
Insurers, which processed the claim according to their out-of-network cap.
Id.
American Orthopedic appealed the claim through the Insurers’ internal review process
and “arranged for Joshua to sign a document entitled ‘Assignment of Benefits & Ltd.
Power of Attorney,’ which reflected that Joshua was assigning to Appellant his right to
pursue claims under his health insurance plan for the surgery and, in the alternative,
that he granted to Appellant a limited power of attorney to recover the payment on his
behalf through an arbitration or lawsuit.” Id. Subsequently, after its administrative
appeal was denied, American Orthopedic sued the Insurers for, among other things,
violations of ERISA. Id. The Insurers moved to dismiss on the ground that American
Orthopedic lacked standing under ERISA by virtue of an anti-assignment clause in
Joshua’s insurance plan. Id. The district court agreed. Id.
The same counsel representing University Spine here represented American
Orthopedic in its appeal to the Third Circuit, and raised nearly identical arguments to
those made in the opposition to Anthem’s original motion to dismiss this lawsuit. The
Third Circuit found “no compelling reason to stray from the ‘black-letter law that the
terms of an unambiguous private contract must be enforced.’” Id. at 453 (quoting
Travelers Indem. Co. v. Bailey, 557 U.S. 137, 150 (2009)). Accordingly, the Court joined
the prevailing consensus of other Courts of Appeals holding that “anti-assignment
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clauses in ERISA-governed health insurance plans as a general matter are enforceable.”
Id.
The Third Circuit then addressed American Orthopedic’s request that it
“nonetheless vacate and remand so that it can perfect an alternative basis for standing:
the power of attorney that it acknowledge[d] was deficient under applicable state law.”
Id. at 454. The court declined to remand because American Orthopedic had failed to
raise the import of the power-of-attorney Joshua granted in either its opening or reply
brief. Id. at 455. Nevertheless—and arguably in dicta—the Third Circuit posited that
its holding did “not mean that Joshua cannot grant a valid power of attorney.” Id.
“[B]ecause he retains ownership of his claim, Joshua, as principal, may confer on his
agent the authority to assert that claim on his behalf, and the anti-assignment clause no
more has power to strip [American Orthopedic] of its ability to act as Joshua’s agent
than it does to strip Joshua of his own interest in his claim.” Id.
On November 30, 2018, University Spine filed a motion seeking leave to file an
amended complaint that would, among other things, substitute Dr. Arash Emami
(“Emami”) as plaintiff in this lawsuit as Amy M’s attorney-in-fact.3 (D.E. 17-3 (“Am.
Compl.”) ¶ 4.) According to the proposed amended complaint, the power of attorney
conferring Emami with the authority to act as Amy M.’s attorney-in-fact was executed
on June 29, 2018 (the “Power of Attorney”), shortly after the Third Circuit issued its
For ease of reference, any citations to the proposed amended complaint are to the
blackline version of the document, rather than the redline.
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decision in American Orthopedic and long after University Spine initiated this action.
(D.E. 17-3, Ex. K (“Power of Attorney”).) The proposed amended complaint only
asserts one cause of action for recovery of benefits under 29 U.S.C. § 1132(a)(1)(B).
(Am. Compl. ¶¶ 37-40.) It dispenses with the claims asserted in the original complaint
for failure to comply with the emergency service cost sharing requirement of N.J.A.C.
11:4-37.3, and for breach of fiduciary duty under 29 U.S.C. §§ 1132(a)(3), 1104(a)(1),
and 1105(a).
Anthem filed opposition and a cross-motion to dismiss the proposed amended
complaint. (D.E. 20.) Alternatively, Anthem moves to disqualify University Spine’s
counsel, Callagy Law, and seeks the attorneys’ fees and costs it incurred in this action
on the ground that Callagy Law has engaged in the serial filing of ERISA complaints
that lack any basis in law and fact in this District. (D.E. 20-1 at 16-20.) In response,
University Spine cross-moves for sanctions and for its attorneys’ fees and costs “for
having to defend against” what it claims are Anthem’s “weak arguments that border on
frivolous.” (D.E. 24-1 at 11, 25.)
III.
Discussion
The Court must first address the threshold question posed by Anthem regarding
whether University Spine may cure any standing defects in its original complaint with
an amended pleading. Anthem contends that because University Spine lacked standing
to bring the original complaint by virtue of the anti-assignment clause, the Court is
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without subject matter jurisdiction over the action and therefore may not consider
University Spine’s motion to amend. The Court agrees.
The Supreme Court has “always insisted on strict compliance with this
jurisdictional standing requirement.” Raines v. Byrd, 521 U.S. 811, 819 (1997); see also
Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996) (“[S]tanding . . . is jurisdictional and not
subject to waiver.”). “‘To bring a civil action under ERISA, a plaintiff must have
constitutional, prudential, and statutory standing.’” Baldwin v. Univ. of Pittsburgh Med.
Ctr., 636 F.3d 69, 74 (3d Cir. 2011) (quoting Leuthner v. Blue Cross & Blue Shield of Ne.
Pennsylvania, 454 F.3d 120, 125 (3d Cir. 2006)). For a claim for benefits under ERISA,
§ 502(a) expressly limits statutory standing to a plan “participant or beneficiary.” 29
U.S.C. § 1132(a)(1). In addition, the Third Circuit has held that a healthcare provider
possesses derivative standing to sue under § 502(a) “when a patient assigns payment of
insurance benefits to” it. NJBSC, 801 F.3d at 372. And as discussed above, the Third
Circuit most recently observed that a patient, pursuant to a validly granted power of
attorney, may confer on its agent, including healthcare providers, the authority, and
hence standing, to assert an ERISA claim on his or her behalf. Am. Orthopedic, 890 F.3d
at 455. Critically, the question of whether a plaintiff is a proper party to pursue a claim
for benefits under ERISA “is both a standing and subject matter jurisdictional requirement.”
Miller v. Rite Aid Corp., 334 F.3d 335, 340 (3d Cir. 2003) (emphasis added) (citation and
internal quotation marks omitted); accord Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1160
n.14 (10th Cir. 2004); SeYoung Ra v. Gerhard’s, Inc., No. 17-5211, 2019 WL 95473, at *9
7
(E.D. Pa. Jan. 3, 2019); Robinson v. Laneko Eng’g Co., No. 14-5036, 2015 WL 4000145, at
*3 (E.D. Pa. July 1, 2015), aff’d, 634 F. App’x 355 (3d Cir. 2016); Giuffrida v. New Jersey
Builders Statewide Benefits Fund, No. 14-7059, 2016 WL 1223324, at *5 (D.N.J. Mar. 29,
2016) (Cecchi, J.).
Pursuant to 28 U.S.C. § 1653, “[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.” But in Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 830-31 (1989), the Supreme Court explained that while §
1653 permits amendments regarding “allegations of jurisdiction,” it does not sanction
amendments to correct deficient jurisdictional facts. Specifically,
Title 28 U.S.C. § 1653, enacted as part of the revision of the
Judicial Code in 1948, provides that “[d]efective allegations
of jurisdiction may be amended, upon terms, in the trial or
appellate courts.” At first blush, the language of this
provision appears to cover the situation here, where the
complaint is amended to drop a nondiverse party in order to
preserve statutory jurisdiction. But § 1653 speaks of
amending “allegations of jurisdiction,” which suggests that it
addresses only incorrect statements about jurisdiction that
actually exists, and not defects in the jurisdictional facts
themselves.
Newman-Green, Inc., 490 U.S at 830–31 (alteration in original). “Thus, the statute does
not ‘empower federal courts to amend a complaint so as to produce jurisdiction where
none actually existed before.’” Multicultural Radio Broad., Inc. v. Korean Radio Broad., Inc.,
No. 15-1961, 2017 WL 436250, at *4 (D.N.J. Jan. 31, 2017) (Chesler, J.) (quoting
Newman-Green, Inc., 490 U.S. at 831); see also Saxon Fibers, LLC. v. Wood, 118 F. App’x
750, 752 (4th Cir. 2005) (“[A] plaintiff may not use [28 U.S.C. § 1653] or any other
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means to obtain leave of court to amend a complaint to allege a federal cause of action
not previously pled when the court had no jurisdiction over the original complaint.”
(footnote omitted)). As is relevant here, a plaintiff may therefore “‘not amend the
complaint to substitute a new plaintiff in order to cure a lack of jurisdiction, because a
plaintiff may not create jurisdiction by amendment when none exists.’” Arrow Drilling
Co. v. Carpenter, No. 02-9097, 2003 WL 23100808, at *5 (E.D. Pa. Sept. 23, 2003)
(quoting Moore’s Federal Practice ¶ 15.13[2] (3d ed. 1999)), aff’d, 125 F. App’x 423 (3d
Cir. 2005); see also Pressroom Unions-Printers League Income Sec. Fund v. Cont’l Assur. Co., 700
F.2d 889, 893 (2d Cir. 1983) (“The longstanding and clear rule is that ‘if jurisdiction is
lacking at the commencement of [a] suit, it cannot be aided by the intervention of a
[plaintiff] with a sufficient claim.’” (alterations in original) (quoting Pianta v. H.M. Reich
Co., 77 F.2d 888, 890 (2d Cir. 1935)); Field v. Volkswagenwerk AG, 626 F.2d 293, 306 (3d
Cir. 1980) (concluding that § 1653 did not authorize an amendment to substitute a party
who had standing to sue on behalf of an estate at the time the action was commenced);
Ciliv v. UXB Int’l, Inc., No. 12-290, 2013 WL 4040815, at *1 (W.D. Va. Aug. 8, 2013)
(“Similarly, a plaintiff who lacks standing is not permitted to amend the complaint to
substitute a new plaintiff in order to cure a lack of jurisdiction, because a plaintiff may
not create jurisdiction by amendment where none exists.” (citation and internal
quotation marks omitted)). Consequently, the Court must first determine whether it
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had subject matter jurisdiction over this action as originally filed before it may even
consider University Spine’s motion to substitute Emami as Amy M.’s attorney-in-fact.4
Counts Two and Three of the complaint purport to bring causes of action under
ERISA pursuant to the Assignment University Spine claims it obtained from Amy M.
(Compl. ¶¶ 22-39.) Thus, while University Spine essentially concedes that it lacked
standing to bring these claims at the time the complaint was filed by virtue of the antiassignment clause (see D.E. 17-1 at 1 (“Plaintiff is hereby seeking to amend its
Complaint because, inter alia, it has remedied any potential standing issues through a
power-of-attorney . . . .”)), the Court must nevertheless determine whether that clause
in fact prohibited Amy M. from making the Assignment to University Spine.
Specifically, the anti-assignment clause provides:
The Group cannot legally transfer this Booklet, without
obtaining written permission from us. Members cannot
legally transfer the coverage. Benefits available under this Booklet
are not assignable by any Member without obtaining written permission
from us, unless in a way described in this Booklet.
(D.E. 6-2 at 119 (emphasis added).) That clause clearly and unambiguously bars Amy
M. from assigning her right to benefits under the Plan to a healthcare provider, absent
A court may sua sponte raise issues regarding its subject matter jurisdiction. See Nesbit
v. Gears Unlimited, Inc., 347 F.3d 72, 76–77 (3d Cir. 2003) (“[B]ecause subject matter
jurisdiction is non-waivable, courts have an independent obligation to satisfy
themselves of jurisdiction if it is in doubt.”). Thus, while it finds the argument specious,
the Court’s inquiry into its own subject matter jurisdiction will put to rest University
Spine’s assertion that a court may only deny a motion to amend on the ground that it
did not originally have subject matter jurisdiction due to a plaintiff’s lack of standing if
that issue had been “adjudicated” prior to the motion to amend. (See D.E. 23 at 21-22.)
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written permission from Anthem. And University Spine does not claim that Amy M.
received Anthem’s written permission prior to making the Assignment. Thus the
Assignment is void and unenforceable, and University Spine lacks standing to bring
Counts Two and Three. Indeed, in other cases (many of which involved University
Spine, Emami, and/or Callagy Law), courts found that similarly phrased antiassignment clauses deprived healthcare providers relying on assignments of derivative
standing to sue under ERISA.5 Consequently, University Spine is without standing to
bring Counts Two and Three in the original complaint. See Zapiach v. Empire Blue Cross
Blue Shield, No. 17-10179, 2018 WL 1838017, at *3 (D.N.J. Apr. 17, 2018) (Wigenton,
J.) (dismissing identical causes of action to those in Counts Two and Three because,
among other things, plaintiff lacked standing to pursue them).
See, e.g., Enlightened Sols., LLC v. United Behavioral Health, No. 18-06672, 2018 WL
6381883, at *3, 5 (D.N.J. Dec. 6, 2018) (Hillman, J.) (finding that a clause providing that
“[a] Claimant may not assign his/her Claim under the Plan to a Nonparticipating
Provider without the Plan’s express written consent” deprived a healthcare provider of
standing since the participant did not obtain the plan’s written consent); Univ. Spine Ctr.
v. United Healthcare, No. 17-8575, 2018 WL 4089061, at *3-4 (D.N.J. Aug. 27, 2018)
(Salas, J.) (granting a motion to dismiss that relied on an anti-assignment clause that
stated “[a]ny benefits under this Certificate are not assignable by any Member without
Our written consent”); Univ. Spine Ctr. v. Aetna, Inc., No. 17-8161, 2018 WL 2441764, at
*3-4 (D.N.J. May 31, 2018) (Cecchi, J.) (concluding that plaintiff lacked a valid
assignment and did not have standing under ERISA in light of anti-assignment clause
providing that “[a]ll coverage may be assigned only with the written consent of Aetna”);
Arash Emami, MD, PC v. Quinteles IMS, No. 17-3069, 2017 WL 4220329, at *2-3 (D.N.J.
Sept. 21, 2017) (Linares, J.) (granting a motion to dismiss for lack of standing that relied
on an anti-assignment clause stating “[t]he coverage and any benefits under the Plan are
not assignable by any Member without the written consent of the Plan”).
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As for Count One, it purports to bring a state law claim for failure to comply
with the emergency service cost sharing requirement of N.J.A.C. 11:4-37.3. (Compl. ¶¶
18-21.) Assuming that N.J.A.C. 11:4-37.3 contains an implied right of action, 6 ERISA
completely pre-empts Count One because it is based entirely on Anthem’s alleged
failure to fully reimburse University Spine for the surgery it performed on Amy M. See
E. Coast Aesthetic Surgery, P.C. v. UnitedHealthcare, No. 17-13595, 2018 WL 3201798, at
*3 (D.N.J. June 29, 2018) (Martini, J.) (dismissing a claim brought under N.J.A.C. 11:437.3 because it was completely pre-empted by ERISA); Cape Reg’l Med. Ctr., 2018 WL
2980386, at *1-2 (same).7 Because Count One is completely pre-empted by ERISA,
University Spine lacks standing to bring it.8
Based on the foregoing, the Court lacks subject matter jurisdiction over the
action as originally filed. As such, University Spine cannot attempt to cure the
jurisdictional defects that plagued the original complaint through the proposed
amended complaint. Multicultural Radio, 2017 WL 436250, at *4. And contrary to
In fact, courts have found that there is no private right of action under N.J.A.C. 11:437.3. See, e.g., Cape Reg’l Med. Ctr. v. Cigna Health & Life Ins. Co., No. 17-5284, 2018 WL
2980386, at *2 (D.N.J. June 14, 2018) (Rodriguez, J.) (“Even if Count One was not
preempted by ERISA, it still must be dismissed because N.J. Admin. Code. § 11:4–37.3
does not provide a private right of action.”); Zapiach, 2018 WL 1838017, at *4 (same).
7
It bears mentioning that Callagy Law, counsel for University Spine, also represented
the healthcare provider plaintiffs in these two cases, along with Zapiach.
8
“[C]omplete preemption operates to confer original federal subject matter jurisdiction
notwithstanding the absence of a federal cause of action on the face of the complaint.”
N.J. Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d
Cir. 2014) (citation and internal quotation marks omitted).
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arguments advanced by University Spine, the Third Circuit’s decision in American
Orthopedic does not hold otherwise. To be sure, the Third Circuit surmised, albeit in
dicta because American Orthopedic had waived its arguments concerning the power of
attorney, that Joshua could confer a power of attorney on American Orthopedic to
pursue a claim on his behalf. See Am. Orthopedic, 890 F.3d at 455 (“[B]ecause he retains
ownership of his claim, Joshua, as principal, may confer on his agent the authority to
assert that claim on his behalf, and the anti-assignment clause no more has power to
strip Appellant of its ability to act as Joshua’s agent than it does to strip Joshua of his
own interest in his claim.”). But at no point, did it postulate, let alone state, that a
healthcare provider may amend a complaint to allege that it or anyone else obtained a
power of attorney from a patient. And even if the Third Circuit did speculate as such,
the critical distinction between the facts in American Orthopedic and this lawsuit is that
American Orthopedic, prior to suing in the district court, “[a]rranged for Joshua to sign
a document entitled ‘Assignment of Benefits & Ltd. Power of Attorney,’ which reflected
that Joshua was assigning to Appellant his right to pursue claims under his health
insurance plan for the surgery and, in the alternative, that he granted to Appellant a limited
power of attorney to recover the payment on his behalf through an arbitration or lawsuit.” Id. at 448
(emphasis added). In other words, American Orthopedic could have pled—at the time
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it filed its complaint—that it could pursue an ERISA claim in Joshua’s name pursuant
to a power of attorney that he conferred on it. 9
Here by contrast Amy M. did not grant it the Power of Attorney until June 29,
2018 (Power of Attorney), more than seven months after it filed the initial complaint
on November 16, 2017. 10
In sum, the Court lacked subject matter over this action at the time it was filed
because University Spine did not have standing to pursue a claim for benefits under
ERISA by virtue of the anti-assignment clause in the Plan. Accordingly, the Court
denies University Spine’s motion for leave to file an amended complaint because it
cannot attempt to cure jurisdictional deficiencies through an amended pleading.
Because the Court is without subject matter jurisdiction, this action is dismissed, see Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”), and the parties’ other pending motions
Had it not waived its arguments regarding the power of attorney, American
Orthopedic had requested the Third Circuit to remand so that it could properly
“perfect” the power of attorney, which it previously obtained from Joshua. Id. at 454.
10
University Spine also relies on Med-X Glob., LLC v. Azimuth Risk Sols., LLC, No. 1713086, 2018 WL 4089062 (D.N.J. Aug. 27, 2018) (Thompson, J.). That case, however,
dealt with a breach of contract claim and only cited American Orthopedic for the noncontroversial proposition that “an attorney-in-fact lacks standing to sue in her own
name.” Azimuth, 2018 WL 4089062, at *2. Indeed, the court stressed that “[a]lthough
American Orthopedic is a case arising under ERISA, its proposition that a grant of powerof-attorney does not confer standing derives, not from ERISA, but from principles of
agency and contract. Note also that American Orthopedic’s findings as to power-of-attorney are
dicta, as Appellant in that case had waived its arguments concerning power-of-attorney.”
Id. at *2 n.2 (emphasis added) (citation omitted). Accordingly, the Court does not find
Azimuth persuasive.
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are denied as moot, see Bell v. United Auto Grp., Inc., No. 05-2262, 2007 WL 2892940, at
*5 (D.N.J. Sept. 28, 2007) (Hillman, J.) (denying all pending motions as moot after
finding that the court lacked subject matter jurisdiction).
IV.
Conclusion
For the above stated reasons, the Court denies all pending motions and dismisses
this action for lack of subject matter jurisdiction. An appropriate order will be entered.
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
Dated: October 2, 2019
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