Josephson et al v. United Healthcare Corporation et al
MEMORANDUM & ORDER denying 64 Motion for Reconsideration; Currently pending before the Court is defendants United Healthcare Corporation; United Healthcare Insurance Company; United Healthcare Insurance Company of New York, Inc.; United Healthcar e Services, Inc.; United Healthcare Service Corporation; and Ingenix, Inc.'s motion for reconsideration of that portion of the Court's July 24, 2013 Memorandum & Order (Docket Entry 61) denying Defendants' motion to dismiss based upon the statute of limitations. For the foregoing reasons, Defendants' motion for reconsideration of the July 2013 Order is DENIED. So Ordered by Judge Joanna Seybert on 1/21/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JORDAN S. JOSEPHSON and JORDAN S.
JOSEPHSON, M.D., P.C.,
MEMORANDUM & ORDER
UNITED HEALTHCARE CORPORATION
n/k/a United Health Group;
UNITED HEALTHCARE INSURANCE
COMPANY; UNITED HEALTHCARE
INSURANCE COMPANY OF NEW YORK,
INC.; UNITED HEALTHCARE SERVICES,
INC.; UNITED HEALTHCARE SERVICE
CORPORATION; and INGENIX, INC.,
Lauren M. Levine, Esq.
Roy M. Breitenbach, Esq.
Salvatore Puccio, Esq.
Justin M. Vogel, Esq.
Garfunkel, Wild & Travis
111 Great Neck Road
Great Neck, NY 11021
Karen C. Higgins, Esq.
Peter P. McNamara, Esq.
Joseph K. Poe, Esq.
Rivkin Radler LLP
926 RXR Plaza
Uniondale, NY 11556
SEYBERT, District Judge:
Company; United Healthcare Insurance Company of New York, Inc.;
(“Ingenix” and together with United, “Defendants”) motion for
reconsideration of that portion of the Court’s July 24, 2013
Memorandum and Order (the “July 2013 Order,” Docket Entry 61)
denying Defendants’ motion to dismiss based upon the statute of
For the following reasons, Defendants’ motion is
facts of this case, which are detailed in the Court’s July 2013
September 28, 2012 (the “September 2012 Order,” Docket Entry
The Court will briefly set forth the background relevant
to the currently pending motion.
Plaintiffs Jordan S. Josephson (“Dr. Josephson”) and
Jordan S. Josephson, M.D., P.C. (the “P.C.” and together with
Dr. Josephson, “Plaintiffs”) commenced this action on July 29,
2011 against Defendants.
Relevant here are their first three
causes of action, in which Plaintiffs allege claims for breach
The First Cause of Action alleges that United
provide covered health services to United Members in exchange
Plaintiffs filed an Amended Complaint on October 16, 2012.
(See Docket Entry 44.) The First, Second, and Third Causes of
Action therein reiterate those in the original Complaint.
for United paying Dr. Josephson for those services at the usual,
Plaintiffs allege that “[d]ating back to the mid-1990s, United
breached its obligations under these contracts by failing to
reimburse Dr. Josephson for medically necessary procedures he
performed” and “by failing to reimburse Dr. Josephson the proper
(Compl. ¶¶ 104-05.)
The Third Cause of Action alleges that
The Second Cause of Action alleges that
(Compl. ¶¶ 109-118.)
determinations in a fashion that conflicted with its obligations
to Dr. Josephson and, in addition, it has misrepresented to Dr.
Josephson (and its Members) that the UCR amounts were calculated
on the basis of valid data.”
(Compl. ¶ 123-24.)
practices, Dr. Josephson has been reimbursed in amounts less
than what he should have been paid.”
(Compl. ¶ 127.)
arguing, inter alia, that Plaintiffs’ claims are time-barred and
that their contract-based claims are duplicative and must be
(See Defs.’ Br. to Dismiss, Docket Entry 14-6, at 5-
Plaintiffs responded that their claims are not time3
Plaintiffs were part of a prior class action (the “AMA Class
(See Pls.’ Opp. Br., Docket Entry 25-10, at 9 (citing
American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756,
38 L. Ed. 2d 713 (1974).)
They further maintained that their
Third Cause of Action is independent from their First and Second
Causes of Action.
(See Pls.’ Opp. Br. at 14 (“Plaintiffs’ First
and Second Causes of Action seek damages based on Defendants’
failure to reimburse Plaintiffs for services provided to United
Members in any amount . . . Plaintiffs’ Third Cause of Action,
on the other hand, seeks damages for Defendants’ failure to
(emphasis in original)).)
In the September 2012 Order, the Court declined to
dismiss the first three causes of action as duplicative, but
ordered additional briefing regarding tolling and application of
Following said supplemental briefing, the Court
issued the July 2013 Order, holding that American Pipe applied,
Defendants now seek reconsideration of the July 2013 Order.
As explained in the Court’s prior orders, the AMA Class Action
refers to American Medical Association v. United Healthcare
Corporation, No. 00-CV-2800 (S.D.N.Y.) in which healthcare
providers commenced a class action lawsuit against Defendants
based, in part, on allegedly improper UCR determinations.
standard before turning to the merits of Defendants’ motion.
I. Legal Standard
Motions for reconsideration may be brought pursuant to
Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure
and Local Rule 6.3.
See Wilson v. Pessah, No. 05-CV-3143, 2007
reconsideration is appropriate when the moving party believes
repackage and relitigate arguments and issues already considered
by the Court in deciding the original motion.
See United States
v. Gross, No. 98-CR-0159, 2002 WL 32096592, at *4 (E.D.N.Y. Dec.
5, 2002) (“A party may not use a motion to reconsider as an
Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135
Reconsideration may only be granted when the
Court did not evaluate decisions or data that might reasonably
Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y.
II. Defendants’ Motion
arguments: (1) the Court overlooked the Second Circuit’s rule
that the challenged conduct that gave rise to the class action
must be the same as that giving rise to the class member’s
subsequent claim in order to apply American Pipe tolling, and
(2) the Court overlooked the fact that the challenged conduct
that gave rise to the AMA class action was not the same as the
challenged conduct giving rise to Plaintiffs’ First and Second
Causes of Action.
(See Defs.’ Br. for Recon., Docket Entry 64Br.
Defendants’ attempts to frame these matters as issues that the
Court overlooked, Defendants have not, in fact, set forth proper
grounds for reconsideration.
Rather than bringing matters to the Court’s attention
that it has overlooked, Defendants attempt to re-argue issues
that have been raised and briefed with the Court on multiple
In their reply in further support of the motion to
dismiss, Defendants set forth both the American Pipe tolling
doctrine and their asserted application of the doctrine.
example, Defendants stated “it is well-settled that the American
Pipe tolling doctrine does not apply where the claims asserted
by the putative or opted-out class member are not substantively
similar to those asserted in the class action.”
Br. to Dismiss, Docket Entry 32, at 2.)
They went on to assert
that “the AMA Complaint is vastly different from Josephson’s
Specifically, the AMA Class Action did not assert
any claims on behalf of the Provider/Physician Plaintiffs Class
for benefits that United allegedly improperly denied under the
Plans (Plaintiffs’ First [and] Second . . . Causes of Action) .
. . .”
(Defs.’ Reply Br. to Dismiss at 2-3.)
Then again, in
their supplemental briefing following the September 2012 Order,
Defendants reiterated that “[t]he American Pipe tolling doctrine
conduct’, and facts giving rise to the claims asserted in the
member are the same . . . .’”
(Defs.’ Supp. Br., Docket Entry
50, at 4 (quoting Cullen v. Margiotta, 811 F.2d 698, 720-21 (2d
Cir. 1987)); see also id. at 6 n.7 (distinguishing the instant
case from Cullen because the instant action involves distinct
allegations of “wrongful conduct” from those in the AMA Class
They further argued that Plaintiffs “admit that their
different ‘challenged conduct’ than the alleged conduct at issue
reasoning for such argument.
(Defs.’ Supp. Br. at 5.)
Contrary to their assertions, the Court neither overlooked the
differences in the challenged conduct between this case and the
AMA Class Action.
In arguing that this Court overlooked the
Second Circuit’s rule, Defendants cite to the Cullen case.
Defs.’ Br. for Recon. at 5-6.)
However, the July 2013 Order
contains explicit citations and references to Cullen, and indeed
the Court cited that case for the proposition that American Pipe
tolling applies “whenever the alleged wrongful acts giving rise
to the claim in both the class action and the subsequent lawsuit
are the same . . . .”
(July 2013 Order at 10 (citing Cullen,
811 F.2d at 720 (emphasis added)).)
Thus, the Court not only
considered Cullen, but cited to it for the exact proposition
that Defendants maintain the Court overlooked.
Nor did the Court overlook anything in its application
that, whereas the alleged challenged conduct in the AMA Class
underpayment, the challenged conduct in Plaintiffs’ First and
determinations made by Defendants.
(See Defs.’ Br. for Recon.
The Court considered and rejected this argument in the
articulated in the instant action and in the AMA Class Action
sufficient sameness to invoke the American Pipe doctrine.
the Court determined that the challenged conduct in both actions
pertained to allegedly improper determinations regarding amounts
to be paid.
(See July 2013 Order at 12.)
Moreover, the Court
found that, because both actions involved “the same services,
same patients, and same time period[s],” application of American
doctrine’s function, would preserve fairness, and would ensure
that Defendants would not be prejudiced.
(July 2013 Order at
Accordingly, Defendants’ motion is DENIED.
reconsideration of the July 2013 Order is DENIED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
21 , 2014
Central Islip, New York
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