Uddoh et al v. United Healthcare et al
MEMORANDUM DECISION & ORDER dated 2/10/17 that Empires motion to dismiss is granted and plaintiffs claims against Empire aredismissed. The United Defendants motion to dismiss is granted to the extent set forth above. Plaintiff may file an amended complaint within 14 days. ( Ordered by Judge Brian M. Cogan on 2/10/2017 ) (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HUMPHREY O. UDDOH, and PLAMEN
: MEMORANDUM DECISION &
: 16-cv-1002 (BMC) (LB)
- against :
UNITED HEALTHCARE, THE EMPIRE
PLAN (NYSHIP), GINGER W.
WHISPELLL, and JENNIFER JABLONSKI, :
COGAN, District Judge.
Plaintiffs pro se are a same-sex, male couple who applied for insurance benefits through
their insurance plan in connection with their desire to parent a child using in vitro fertilization
(“IVF”) and non-paid surrogacy. After initially issuing a conditional pre-approval of coverage
based on the mistaken assumption that plaintiffs were a heterosexual couple and thus it would be
approving female implantation procedures for one of the insureds, the policy administrator
reversed its position and denied coverage on the ground that the policy does not cover surrogacy,
whether for heterosexual or homosexual insureds. After further consideration, the policy
administrator modified its position and agreed to pay for medical procedures necessary for the
collection of sperm from both plaintiffs, but not for the collection or implantation of oocytes or
Claiming that the insurer’s change of position has caused them damages, and that it
constitutes illegal discrimination, and that they were defamed in the process, plaintiffs have
brought this action alleging four claims for relief: violation of the Equal Protection Clause under
42 U.S.C. § 1983; breach of contract; slander; and “detrimental reliance” (i.e., promissory
estoppel). Defendants consist of plaintiffs’ insurance plan, sued as “The Empire Plan
(NYSHIP)” (referred to as “Empire”); the plan administrator, United Healthcare (“United”); and
two United employees, Ginger W. Whispell1 and Jennifer Jablonski (together with United, the
All defendants have moved to dismiss on various grounds. Defendants’ motions to
dismiss are granted and plaintiffs are granted leave to file an amended complaint to the extent set
forth below within 14 days.
Construing the complaint in the light most favorable to these pro se plaintiffs, plaintiff
Humphrey O. Uddoh is an attorney for the New York City Transit Authority.2 His employer
provides health insurance through the New York State Health Insurance Program (NYSHIP),
which offers a plan known as the Empire Plan, under which he has been covered for almost a
decade. He added his male partner, plaintiff Plamen Koev, as an additional insured at the same
time he signed up. The application to add Koev disclosed that Koev is a male.
Although the complaint treats Empire and United as a single entity, it is clear from the
over 90 pages of documents annexed to the complaint, which are deemed part of the complaint
for purposes of defendants’ motions, see Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000),
Based on the United Defendants’ memoranda in support of their motion to dismiss, it appears defendant
“Whispell’s” name is actually spelled “Whispelll.” The Clerk is directed to amend the caption as set forth above.
It is axiomatic that a pro se complaint is held to less stringent standards than pleadings drafted by attorneys, and
the Court is required to read the complaint liberally and interpret it as raising the strongest arguments it suggests.
Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant
#1, 537 F.3d 185, 191-93 (2d Cir. 2008). However, as an attorney, plaintiff Uddoh is entitled to less leniency than a
non-attorney pro se plaintiff. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).
that United acts as the policy and/or claims administrator for Empire, and that defendants
Jablonski and Whispell are employed by United.3
Plaintiffs decided to start a family in early 2014. Plaintiff Uddoh applied for preapproval of certain IVF procedures – the complaint does not set forth the specifics of the
application – which, in part, had to do with the fact that both plaintiffs have conditions that
required some fairly serious surgery in order to collect the sperm necessary for IVF. On May 16,
2014, plaintiff Uddoh received a letter from United “confirming that the following qualified
procedures for you and Plamen Koev are a covered expense under your health benefit plan: IVF,
GIFT, ZIF, ICSI, Assisted Hatching, MESA, TESE, sperm, egg or inseminated egg procurement,
processing, egg or embryo banking determined appropriate by your physician.” The letter also
stated: “Please note that payment is subject to patient eligibility and Empire Plan provisions at
the time the health care services are received.”
The complaint acknowledges that at the time it sent this letter, United was operating
under the misimpression that “Plamen Koev” was a female, although plaintiffs believe that this
was an unreasonable misimpression in light of the disclosure in the insurance application that
Koev is a male, and perhaps – the complaint is not entirely clear – the fact that Koev had
submitted prior insurance claims that confirmed this. In any event, the matter apparently came to
light when a United employee, defendant Whispell, called one of Koev’s medical care providers
to inquire whether he is male or female. After finding out that Koev is a male, Whispell
allegedly told the provider to immediately cancel the procedure.
After learning about this exchange, plaintiff Uddoh contacted Whispell’s supervisor,
defendant Jablonski. At that point, Jablonski accused Uddoh of insurance fraud and threatened
The complaint contains footnotes referring to various exhibit numbers of the documents annexed to the complaints.
But the documents have no exhibit numbers.
to seek recoupment of the surgical costs that had already been paid for Uddoh’s two surgical
procedures. In addition, the complaint alleges that defendants Jablonski and Whispell, made
similar accusations of fraud to plaintiffs’ health care provider.
The complaint does not allege the date when this mistake was discovered, but on
November 4, 2014, United sent a letter to plaintiff Koev disclaiming coverage for his portion of
“infertility services.” The letter stated that
We have completed a request for infertility services for you. Your condition is
not consistent with the Plan benefit for infertility services. You do not qualify for
the benefit because your condition is not the reason a pregnancy cannot be
achieved. In addition the plan does not provide benefits in connection with
services for surrogacy.
Under the terms of the Empire Plan, “For the purposes of this benefit, infertility is
defined as a condition of an individual who is unable to achieve a pregnancy
because the individual and/or partner has been diagnosed as infertile by a
physician.” In addition, “Medical expenses or any other charges in connection
with surrogacy” are excluded from coverage under the Plan. Accordingly any
charges or expenses for services related to your infertility or in connection with
surrogacy are not covered.
After these communications, Uddoh demonstrated to United that Koev had always been
identified as a male, both in the policy application and in claims that he had previously
submitted. United thereupon agreed to modify its rejection letter. It agreed to cover the surgical
procedures for the harvesting of the sperm from both plaintiffs, its storage, and fertilization.
However, it did not agree to “[p]rocurement of oocytes” or “[s]ervices rendered to a surrogate.”
The basis for this denial was that the Empire Plan expressly excludes “[m]edical expenses or any
other charges in connection with surrogacy”; “[a]ny donor compensation or fees charged in
facilitating a pregnancy”; and “[a]ny charges for services provided to a donor in facilitating a
The complaint alleges that in reliance on the initial pre-approval letter, plaintiffs spent
$150,000 that is not covered under the revised approval letter. Plaintiffs have not clearly
explained why not. As best I can tell from the complaint and plaintiffs’ memoranda in
opposition to defendants’ motions, plaintiffs originally had a volunteer (non-paid) surrogate
willing to assist them when they received the pre-approval, but the revocation of approval caused
a delay which lost them that opportunity, and now they have to pay for a surrogate. Plaintiffs,
however, acknowledge that the Empire Plan does not cover surrogacy and that, in any event,
New York law does not allow coverage for surrogacy.
The Empire Plan (NYSHIP)
The Attorney General originally moved to dismiss the complaint as to Empire on the
ground, inter alia, of improper service, arguing that plaintiffs’ attempt to effect service on
Empire by serving United as the plan administrator was ineffective because United was not
authorized to accept service on Empire’s behalf. The Attorney General did not, however, advise
how service could be properly made on Empire, and it did not appear that there was any means
to effect service. This raised the question of whether Empire is a juridical entity capable of being
sued or simply a health benefits plan created by the New York State Department of Civil Service
and administered under contract by United. Because the Attorney General’s position on this
issue was ambiguous, the Court ordered discovery on it.
Discovery has shown that, in fact, neither NYSHIP nor Empire is a legal entity
susceptible to suit. NYSHIP is just the program name of the various insurance plans offered to
state employees, which is administered by the Department of Civil Service, and Empire is simply
one of those plans. Neither NYSHIP nor Empire has any employees, officers, a board of
directors, separate assets, or a place of business; the individuals who oversee NYSHIP and the
Empire Plan are employees of the Department of Civil Service. Pursuant to contract, United, as
the administrator, processes and handles claims made by beneficiaries of the Empire Plan. The
contract assigning to United the responsibility for the administration of claims under the Empire
Plan is between United and the Department of Civil Service, not Empire. In fact, there are no
contracts to which NYSHIP or Empire or parties.
Neither NYSHIP nor Empire retain records; all records relating to them are maintained
by the Department of Civil Service. The Department of Civil Service pays United for its
services, not NYSHIP or Empire. Further, because the Empire Plan is self-insured, the
Department of Civil Service bears all responsibility for claims and expenses under or against it,
for which it receives state funding and makes annual budget requests to the New York State
Division of the Budget.
The classification of NYSHIP and Empire as non-juridical entities is consistent with the
status of benefit plans generally. Benefits plans, such as Empire, are not insurance companies;
they are simply programs offered by insurance companies, labor unions or locals, or, if an
employer is self-insured, like New York State, the employer. That is why the Employee
Retirement Income Security Act (“ERISA”), expressly deems that any pension plan covered by
ERISA, which Empire is not, see New York State Psychiatric Ass’n, Inc. v. UnitedHealth Group,
980 F. Supp. 2d 527, 549 (S.D.N.Y. 2013), affirmed in part and vacated on other grounds, 798
F.3d 125 (2d Cir. 2015), to be a juridical entity so that it can sue and be sued under its own
name. See 29 U.S.C. § 1132(d)(1). As the Second Circuit has noted, “[w]ithout such a provision
a pension plan would not be a legally cognizable body.” Pressroom Unions-Printers League
Income Sec. Fund v. Cont’l Assurance Co., 700 F.2d 889, 893 (2d Cir. 1983).
Plaintiffs have offered no persuasive argument to the contrary. First, they point to two
state court cases, Matter of Plainview-Old Bethpage Cong. of Teachers v. New York State
Health Ins. Plan, 140 A.D.3d 1329, 33 N.Y.S.3d 535 (3d Dep’t 2016), and Matter of Roslyn
Teachers Assn. v. New York State Health Ins. Plan, 140 A.D.3d 1332, 36 N.Y.S.3d 894 (3d
Dep’t 2016), where the Department of Civil Service and NYSHIP were named as respondents.
However, no one raised the issue in those cases as to whether NYSHIP was a proper party, and
since the Department of Civil Service was also a party, NYSHIP’s nominal “presence” says
nothing about its juridical status.
Second, plaintiffs submit several excerpts of various Empire documents contemplating
suits concerning benefits. However, the NYSHIP Certificate of Insurance, on which plaintiffs
rely, merely advises Empire beneficiaries of the time limitations on bringing lawsuits regarding
the denial of benefits. It does not indicate the proper party to such a suit. Plaintiffs also identify
various contract provisions, but these all appear in contracts to which the Department of Civil
Service, not NYSHIP, is a signatory.4
Finally, I note that since this is an action for damages, a judgment in plaintiffs’ favor
against Empire would not be of any use to them. As noted above, there is no evidence that
Empire has any assets upon which execution could be levied, and thus retaining it as a defendant
would not result in any recovery to plaintiffs.
Accordingly, Empire’s motion to dismiss is granted and plaintiffs’ claims against Empire
I inquired of plaintiffs whether they wished to substitute the Department of Civil Service if I determined that
Empire is not a suable entity. They have not requested that relief.
The United Defendants
The United Defendants have moved to dismiss on various grounds. Initially, they
contested service as to defendants Jablonski and Whispell, but they have since withdrawn this
The United Defendants’ main point is that the complaint makes no allegations against
them; rather, all of the allegations are against “Empire/NYSHIP.” It is correct that United is
mentioned only in the caption. Jablonski and Whispell are mentioned in the complaint a number
of times, but are misidentified as employees of Empire/NYSHIP.
Because Empire is dismissed as a non-suable party, the complaint makes little sense as
written. Plaintiffs are granted leave to file an amended complaint within 14 days that eliminates
Empire, and properly describes the role of United as plan administrator, and Whispell and
Jablonski, as United employees. Nevertheless, in filing that amended complaint, the other points
raised by the United Defendants are disposed of as follows.
The United Defendants move to dismiss plaintiffs’ slander claim on the grounds that it is
barred by the statute of limitations and fails to state a claim. The complaint states that the
allegedly slanderous statements were made in 2014, and this action was not commenced until
February 2016. Plaintiffs’ slander claim is barred by the one-year statute of limitations, see N.Y.
C.P.L.R. § 215(3); Cullin v. Lynch, 113 A.D.3d 586, 979 N.Y.S.2d 92 (2d Dep’t 2014) (the oneyear statute of limitations begins to accrue on “the date of the publication or utterance of the
allegedly slanderous statement”), and the Court therefore need not reach whether plaintiffs’
allegations fail to state a slander claim.
As importantly, plaintiffs have not responded to United’s arguments as to their slander
claim, except to request that they be permitted to amend their complaint to allege a claim of
misrepresentation, and are thereby deemed to have abandoned their slander claim. See Reid v.
Ingerman Smith LLP, 876 F. Supp. 2d 176, 186 (E.D.N.Y. 2012) (“This Court may, and
generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed.”); Sullivan v. City of New York, 14-CV-1334,
2015 WL 5025296, at *4-5 (S.D.N.Y. Aug. 25, 2015) (holding that plaintiff, an attorney
proceeding pro se, abandoned his claims against certain defendants where he failed to respond to
those defendants’ motion to dismiss but continued to pursue the claims as to other defendants).
Plaintiffs’ slander claim is dismissed.
In addition, plaintiffs’ equal protection claim is dismissed. Plaintiffs have offered no
factual allegations tending to show that the United Defendants were acting under color of state
law as is required for a § 1983 claim. Merely acting pursuant to a contract with the state, which
plaintiffs do not even acknowledge this was, is not sufficient to make the contractor liable under
42 U.S.C. § 1983 as a state actor. See Cooper v. U.S. Postal Serv., 577 F.3d 479, 492 (2d Cir.
2009) (“‘[A]cts of private contractors do not become acts of the government by reason of their
significant or even total engagement in performing public contracts.’”) (quoting Rendell-Baker
v. Kohn, 457 U.S. 830, 841 (1982)); Phelan ex rel. Phelan v. Torres, 843 F. Supp. 2d 259, 273
(E.D.N.Y. 2011) (“The fact that the state may contract with a private party to perform a function
does not transform the private party into a state actor unless the function is traditionally
exclusively a state function.”).
The Court will not pass upon plaintiffs’ remaining claims, i.e. the breach of contract and
estoppel claims, at this time, except to note that in filing the amended complaint, plaintiffs would
be well-served to make those claims more plausible.
Empire’s motion to dismiss is granted and plaintiffs’ claims against Empire are
dismissed. The United Defendants’ motion to dismiss is granted to the extent set forth above.
Plaintiff may file an amended complaint within 14 days.
Digitally signed by Brian M. Cogan
Dated: Brooklyn, New York
February 10, 2017
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