Josephson et al v. United Healthcare Corporation et al

Filing 85

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
---------------------------------------X
JORDAN S. JOSEPHSON and JORDAN S.
JOSEPHSON, M.D., P.C.,
Plaintiffs,

MEMORANDUM & ORDER
11-CV-3665(JS)(GRB)

-against–
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.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
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
For Defendants:

Karen C. Higgins, Esq.
Peter P. McNamara, Esq.
Joseph K. Poe, Esq.
Rivkin Radler LLP
926 RXR Plaza
Uniondale, NY 11556

SEYBERT, District Judge:
Currently
United

Healthcare

pending

before

Corporation;

the

United

Court

is

defendants

Healthcare

Insurance

Company; United Healthcare Insurance Company of New York, Inc.;
United

Healthcare

Services,

Inc.;

United

Healthcare

Service

Corporation

(collectively

“United”);

and

Ingenix,

Inc.’s

(“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
limitations.

For the following reasons, Defendants’ motion is

DENIED.
BACKGROUND
The

Court

presumes

familiarity

with

the

underlying

facts of this case, which are detailed in the Court’s July 2013
Order

as

well

as

in

the

Court’s

Memorandum

and

Order

dated

September 28, 2012 (the “September 2012 Order,” Docket Entry
41).

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
of contract.1
breached

The First Cause of Action alleges that United

express

contracts

in

which

Dr.

Josephson

agreed

to

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.
1

2

for United paying Dr. Josephson for those services at the usual,
customary,

and

reasonable

rate

(“UCR”).

(Compl.

¶

102.)

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
amount

for

medically

(Compl. ¶¶ 104-05.)
United

breached

breached

pursued

he

performed.”

contracts

through

the

same

conduct.

The Third Cause of Action alleges that

express

standard

procedures

The Second Cause of Action alleges that

implied

(Compl. ¶¶ 109-118.)
United

necessary

and

or

implied

uniform

contracts
policies

because
in

“United

making

UCR

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.”
Plaintiffs

maintain

that

(Compl. ¶ 123-24.)

“[a]s

a

consequence

Accordingly,

of

Defendants’

practices, Dr. Josephson has been reimbursed in amounts less
than what he should have been paid.”
Defendants

moved

to

(Compl. ¶ 127.)

dismiss

on

January

17,

2012,

arguing, inter alia, that Plaintiffs’ claims are time-barred and
that their contract-based claims are duplicative and must be
dismissed.
6, 8.)

(See Defs.’ Br. to Dismiss, Docket Entry 14-6, at 5-

Plaintiffs responded that their claims are not time3

barred

under

the

American

Pipe

tolling

doctrine

because

Plaintiffs were part of a prior class action (the “AMA Class
Action”).2

(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
reimburse

Plaintiffs

at

the

proper

reimbursement

rate.”

(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
American Pipe.

Following said supplemental briefing, the Court

issued the July 2013 Order, holding that American Pipe applied,
Plaintiffs’
Plaintiffs’

claims

were

subject

contract-based

to

claims

tolling,
were

not

and

therefore

time-barred.

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.
2

4

DISCUSSION
The

Court

will

first

address

the

applicable

legal

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.
WL

812999,

at

*2

See Wilson v. Pessah, No. 05-CV-3143, 2007
(E.D.N.Y.

Mar.

14,

2007).

A

motion

for

reconsideration is appropriate when the moving party believes
the

Court

overlooked

decisions”

that

Shamis

Ambassador

v.

(S.D.N.Y.

would

1999).

important
have

“matters

influenced

Factors

Corp.,

Reconsideration

is

or

the
187

not

controlling

prior

decision.

F.R.D.
a

148,

proper

tool

151
to

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
opportunity

to

Nor

proper

is

it

reargue
to

the
raise

same
new

points

raised

arguments

and

previously.”).
issues.

See

Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135
(E.D.N.Y. 1997).

Reconsideration may only be granted when the

Court did not evaluate decisions or data that might reasonably
be

expected

to

alter

the

conclusion

5

reached

by

the

Court.

Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y.
2002).
II. Defendants’ Motion
Defendants

move

for

reconsideration

based

upon

two

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.
1;

Defs.’

Reply

(See Defs.’ Br. for Recon., Docket Entry 64Br.

for

Recon.,

Docket

Entry

67.)

Despite

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
occasions.

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.

For

example, Defendants stated “it is well-settled that the American
Pipe tolling doctrine does not apply where the claims asserted
6

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.)

(Defs.’ Reply

They went on to assert

that “the AMA Complaint is vastly different from Josephson’s
Complaint.

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
applies

only

where

the

‘alleged

wrongful

acts’,

‘challenged

conduct’, and facts giving rise to the claims asserted in the
prior

class

action

and

a

subsequent

member are the same . . . .’”

suit

by

a

former

class

(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
Action).)
First

They further argued that Plaintiffs “admit that their

and

Second

Causes

of

Action

arise

from

materially

different ‘challenged conduct’ than the alleged conduct at issue
in

the

their

Third

Cause

reasoning for such argument.

of

Action”

and

explained

(Defs.’ Supp. Br. at 5.)
7

their

Defendants

now

set

forth

those

same

arguments.

Contrary to their assertions, the Court neither overlooked the
Second

Circuit’s

rule

nor

what

Defendants

maintain

are

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.)

(See

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
of

the

American

Pipe

tolling

doctrine.

Defendants

maintain

that, whereas the alleged challenged conduct in the AMA Class
Action

pertains

to

improperly

calculated

UCRs

resulting

in

underpayment, the challenged conduct in Plaintiffs’ First and
Second

Causes

of

Action

herein

relate

determinations made by Defendants.
at 2.)
July

to

incorrect

benefits

(See Defs.’ Br. for Recon.

The Court considered and rejected this argument in the

2013

Order,

holding

that
8

although

the

legal

theories

articulated in the instant action and in the AMA Class Action
may

not

be

identical,

the

challenged

conduct

constituted

sufficient sameness to invoke the American Pipe doctrine.

Thus,

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
Pipe

tolling

in

this

case

would

be

consistent

with

the

doctrine’s function, would preserve fairness, and would ensure
that Defendants would not be prejudiced.

(July 2013 Order at

11-12.)
Accordingly, Defendants’ motion is DENIED.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

for

reconsideration of the July 2013 Order is DENIED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

January
21 , 2014
Central Islip, New York

9