NEW JERSEY SPINE AND ORTHOPEDICS, LLC v. BAE SYSTEMS INC.
Filing
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OPINION AND ORDER granting 28 Defedant's Motion to Dismiss; dismissing without prejudice 21 Amended Complaint, etc. Signed by Judge Claire C. Cecchi on 12/23/2020. (lag, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
P.M., by its attorney in fact NEW JERSEY
SPINE AND ORTHOPEDICS, LLC, under a
power of attorney,
Civil Action No.: 2:19-cv-10735
OPINION & ORDER
Plaintiff,
v.
BAE SYSTEMS, INC.,
Defendant.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court on the motion of Defendant Bae Systems, Inc.
(“Defendant”) to dismiss the amended complaint (the “Amended Complaint”). ECF No. 28.
Plaintiff P.M. (“Plaintiff”) by its attorney in fact New Jersey Spine and Orthopedics, LLC (“NJ
Spine”), under a power of attorney, filed a brief in opposition (ECF No. 31) and Defendant
replied (ECF No. 38). The motion is decided without oral argument pursuant to Federal Rule of
Civil Procedure 78(b). For the reasons set forth below, Defendant’s motion to dismiss is
GRANTED.
II.
BACKGROUND
On November 15, 2017, NJ Spine performed “surgical services for” a “lumbar spine
surgery” on P.M., who has a welfare benefits plan (the “Plan”) through Defendant. ECF No. 21
¶¶ 6–8.
On the same day, NJ Spine filed for reimbursement from Defendant. Id. at ¶ 9.
Defendant ultimately allowed reimbursement totaling $4,141,38. Id. at ¶ 11.
On April 2, 2019, NJ Spine brought this action in the Superior Court of New Jersey,
Essex County to enforce the Plan benefit in the amount of $192,525.20 pursuant to 19 U.S.C. §
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1132(a)(1)(b). ECF No. 1. The complaint alleged that “[t]his dispute arises from Defendant’s
failure to properly reimburse [NJ Spine] for the medically necessary, reasonable and valuable
surgical services provided to P.M. on or about November 5, 2017.” ECF No. 1-1 at 2. Defendant
removed the action to Federal Court (ECF No. 1) and then moved to dismiss the complaint on
the basis that NJ Spine lacked standing to bring suit on behalf of P.M. (ECF No. 12 at 1). On
January 29, 2019, this Court granted the motion to dismiss as it found that NJ Spine lacked
standing to bring ERISA claims. ECF No. 20 at 4 (“The Complaint identifies New Jersey Spine
and Orthopedics, LLC as the Plaintiff, not P.M., the patient and beneficiary of the benefit plan. . .
. Further, the Complaint seeks to enforce Plaintiffs rights, rather than the rights of P.M. and there
is no allegation that P.M. has suffered any harm. . . . Therefore, Plaintiff lacks standing upon
which to bring its ERISA claims.”). The dismissal was without prejudice and allowed Plaintiff
to file an amended complaint within thirty days of the decision. Id. On February 26, 2020 P.M.
filed the Amended Complaint. ECF No. 21.
III.
LEGAL STANDARD
For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court must accept all well-pleaded factual allegations
in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A
pleading that offers labels and conclusions will not do. Nor does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citations
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omitted). However, “the tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
When reviewing
complaints for failure to state a claim, courts should engage in a two-part analysis: “First, the
factual and legal elements of a claim should be separated . . . . Second, a District Court must
then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff
has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009).
IV.
DISCUSSION
As a preliminary matter, Plaintiff argues pursuant to Federal Rule of Civil Procedure
12(g)(2) that Defendant is barred from bringing a motion to dismiss based on pleading issues
raised for the first time in the instant motion because Defendant’s previous motion to dismiss
only raised issues with respect to standing and the anti-assignment provision of the insurance
plan. ECF No. 31 at 4. Where an amended complaint contains new allegations, however, a
defendant may move to dismiss with a new 12(b)(6) motion and Rule 12(g)(2) does not apply.
See, e.g., Kroger Co. v. New Enter. Stone & Lime Co., 2019 WL 4615966, at *2 n.12 (E.D. Pa.
Sept. 25, 2019); Negron v. Sch. Dist. of Philadelphia, 994 F. Supp. 2d 663, 666–67 (E.D. Pa.
2014). Here, the Amended Complaint contains different allegations than the initial complaint.
Most importantly, the initial complaint was brought by NJ Spine on behalf of P.M., whereas the
Amended Complaint was brought by P.M. through NJ Spine under a power of attorney. The
Employee Retirement Income Security Act (“ERISA”) requires a specific relationship between
plaintiff and defendant. See 29 U.S.C. § 1132(a)(1)(B). Therefore, a change in the named
plaintiff here substantively affects the allegations in the complaint. Accordingly, Defendant is
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not barred from bringing the instant motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Defendant primarily argues that the Amended Complaint should be dismissed under
Federal Rule of Civil Procedure 12(b)(6) because the Amended Complaint does not allege that
the Defendant is required to pay P.M. or NJ Spine any additional amount above the specified out
of network allowance. ECF No. 28-1 at 5 (“Nothing in the Plan, ERISA, or applicable case law
interpreting ERISA confers upon NJ Spine—or P.M.—a right to demand anything other than the
out-of-network allowance provided under the Plan terms.”). Plaintiff argues that the Amended
Complaint sufficiently alleges a claim under ERISA because it “ties its claim to benefits to a
specific plan provision,” and specifically claims that the “maximum reimbursable charge
section” is the “exact plan provision Plaintiff is claiming benefits under.” ECF No. 31 at 9.
Here, even taking the allegations as true, the Amended Complaint does not demonstrate
an entitlement to relief. Despite Plaintiff’s assertions in the briefing, the Amended Complaint
does not contain allegations tying the demand for full payment of additional benefits to a specific
provision in the Defendant’s plan. Instead, the Amended Complaint references generic or
standard terms in plan documents which are insufficient to support Plaintiff’s claims. See ECF
No. 28-1 at 6. Plaintiff has not tied its claim to a specific plan provision as required by the
holding in K.S. v. Thales USA, Inc., 2019 WL 1895064 (D.N.J. Apr. 29, 2019). Courts in this
district routinely grant motions to dismiss when a plaintiff fails to tie its allegation to a specific
provision in the defendant’s Plan. See, e.g., Univ. Spine Ctr. v. Cigna Health & Life Insurance
Co., 2018 WL 4144684 (D.N.J. Aug. 29, 2018); Atlantic Plastic & Hand Surgery v. P.A. Anthem
Blue Cross Blue Shield Life & Health Ins. Co., 2018 WL 1420496 (D.N.J. Mar. 22, 2008).
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In the Amended Complaint, Plaintiff references the “out of network section, recognized
charges section, allowance section and/or CPT coding section of Defendant’s Summary Plan
Description,” as the bases for its claim to additional payment. ECF No. 21 at ¶¶ 19–21.
Defendant points out that multiple courts have dismissed claims with almost identical language.
ECF No. 28-1 at 3 (“[T]he Amended Complaint barely differs from the initial Complaint. It is
also nearly identical to complaints that courts in this District have routinely—and quite
recently—dismissed for failure to state a claim.”). Plaintiff responds in its opposition to the
motion that the “maximum reimbursable charge section” is the precise provision Plaintiff claims
benefits under. ECF No. 31 at 9. However, this language, or anything akin to it, does not appear
in the Amended Complaint, and it is well-settled that a brief in opposition cannot be used to
expand the allegations of the operative pleading. Hughes v. United Parcel Service, Inc., 639 F.
App’x 99, 104 (3d Cir. 2016) (internal citation and quotation marks omitted) (“As this Court has
noted, it is one thing to set forth theories in a brief; it is quite another to make proper allegations
in a complaint.”). As such, the Amended Complaint fails to properly identify the plan provision
giving rise to Plaintiff’s claims or explain how those provisions would entitle Plaintiff to
recovery, but Plaintiff will be afforded an opportunity to properly plead such allegations in a
second amended complaint.1
V.
CONCLUSION
IT IS THEREFORE on this 23rd day of December 2020,
ORDERED that Defendant’s motion to dismiss (ECF No. 28) is GRANTED; and it is
further;
1
Plaintiff specifically requested leave to file a second amended complaint should the Court find
that the Amended Complaint failed to set forth sufficient factual allegations. ECF No. 31 at 9.
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ORDERED that the Amended Complaint (ECF No. 21) is DISMISSED WITHOUT
PREJUDICE; and it is finally;
ORDERED that Plaintiff is hereby granted thirty (30) days from the date of entry of this
order in which to file a second amended complaint that cures the pleading deficiencies as set
forth by the Court.
SO ORDERED.
CLAIRE C. CECCHI, U.S.D.J.
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