MBody Minimally Invasive Surgery, P.C. et al v. Empire HealthChoice HMO, Inc. et al
Filing
62
OPINION & ORDER....The defendants December 30, 2015 motion to dismiss is granted in part. The defendants motion to dismiss Claims arising under Governing Plans with anti-assignment provisions and Claims barred by contractual limitations periods is granted. The defendants motion to dismiss Claims without identified policy numbers is denied. (Signed by Judge Denise L. Cote on 5/19/2016) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
MBODY MINIMALLY INVASIVE
:
SURGERY, P.C., et al.,
:
Plaintiffs,
:
:
-v:
:
EMPIRE HEALTHCHOICE HMO, INC., et
:
al.,
:
Defendants.
:
--------------------------------------- X
APPEARANCES
13cv6551 (DLC)
OPINION & ORDER
For plaintiffs:
Anthony F. Maul
The Maul Firm, P.C.
68 Jay Street, Suite 201
Brooklyn, NY 11201
D. Brian Hufford
Jason S. Cowart
Zuckerman Spaeder LLP
399 Park Ave., 14th Floor
New York, NY 10022
For defendants:
Robert A. Scher
Rachel E. Kramer
Foley & Lardner LLP
90 Park Avenue
New York, NY 10016
DENISE COTE, District Judge:
In this dispute, medical providers seek payment for
services rendered from several health insurance companies.
The
plaintiffs allege that the defendants underpaid and denied
claims (the “Claims”) for medically-necessary services provided
1
to the plaintiffs’ patients, who were enrolled in the
defendants’ health care plans.
The plaintiffs seek redress for
these Claims under the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”) and state law.
The
defendants have filed a motion to dismiss certain Claims from
the case.
For the reasons stated below, the motion for partial
dismissal is granted in part.
BACKGROUND
The following facts are taken from the amended complaint.
Plaintiff Mbody Minimally Invasive Surgery, P.C. (“MMIS”) is a
medical practice in Southampton, New York.
Plaintiff Nick
Gabriel, D.O., the managing partner of MMIS, is a general and
bariatric surgeon licensed in New York.1
The defendants are Blue
Cross Blue Shield (“BCBS”) entities in the business of
underwriting and administering health insurance plans (the
“Plans”) that provide benefits to enrollees or members (the
“Enrollees”).2
The BCBS Plans offered by the defendants identify two types
of providers: “participating” providers who contract with the
Two other plaintiffs named in the amended complaint, Jodie
Brewer, P.A. and Erin Nastro, P.A., voluntarily dismissed their
claims against the defendants on February 9, 2016.
1
The defendants are Empire Healthchoice HMO, Inc.,
Healthchoice Assurance Inc. d/b/a Empire Blue Cross
Community Insurance Company d/b/a Anthem Blue Cross
Shield of Ohio, and Anthem Health Plans of Virginia
Blue Cross and Blue Shield of Virginia.
2
2
Empire
Blue Shield,
and Blue
d/b/a Anthem
defendants to receive negotiated compensation, and “out-ofnetwork” providers who do not have contracted compensation rates
with the defendants.
Both MMIS and Dr. Gabriel are out-of-
network providers who provided medical services to Enrollees.
The amended complaint alleges that the defendants’ payments
to the plaintiffs have been drastically below their billed
charges, as well as drastically below the rates charged by
providers of comparable services in the relevant geographic
area.
In order to seek reimbursement for these Claims, the
plaintiffs allege that they are assignees of the rights and
benefits of Enrollees covered by the Plans.
Some of the Plans contain anti-assignment clauses.
As an
example, one Plan offered by Empire Healthchoice HMO, Inc.
provides
Assignment. You cannot assign any benefits or
monies due under this Contract to any person,
corporation, or other organization. Any assignment
by You will be void. Assignment means the transfer
to another person or to an organization of Your
right to the services provided under this Contract
or your right to collect money from Us for those
services. However, You may request Us to make
payment for services directly to Your Provider
instead of You.
(Emphasis supplied.)
The amended complaint alleges that the
defendants waived the anti-assignment clauses by engaging in
certain conduct.
First, the defendants regularly made direct
payments to the plaintiffs without invoking anti-assignment
3
clauses or reserving any rights thereunder.
Second, the
defendants routinely sent communications to the plaintiffs
addressing them as Plan beneficiaries.
For example, each of the
provider explanation of benefits (“PEOB”) used by the defendants
to communicate benefit determinations to the plaintiffs states:
“You or your authorized representative may appeal or grieve our
determination.”
The PEOBs also reference “your policy” when
referring to a Plan, although the PEOBs are addressed to
providers.
The plaintiffs filed their initial complaint on September
17, 2013, asserting four ERISA and five state law claims.
The
plaintiffs asserted these claims with respect to approximately
160 medical procedures.
The case was initially assigned to the
Hon. Thomas P. Grisea.
On August 15, 2014, Judge Grisea partially dismissed the
complaint.
Mbody Minimally Invasive Surgery, P.C. v. Empire
Healthchoice HMO, Inc., No. 13cv6551, 2014 WL 4058321, at *8
(S.D.N.Y. Aug. 15, 2014) (the “August 2014 Opinion”).
The
August 2014 Opinion dismissed the plaintiffs’ ERISA breach of
fiduciary duty and declaratory judgment claims, claims arising
under Medicare and the Federal Employee Health Benefits plan,
and state law claims for breach of contract, unjust enrichment,
and under N.Y. G.B.L. § 349.
Id. at *4-8.
4
In relevant part,
Judge Grisea also dismissed ERISA claims arising from Plans that
contained anti-assignment provisions, holding
plaintiffs do not have standing to bring claims
under ERISA plans that contain express antiassignment provisions. If a health insurance
plan unambiguously prohibits assignment, an
attempted assignment will be ineffectual. Here,
the anti-assignment provisions are clear. . . .
The plan language is unambiguous. Thus,
plaintiffs’ alleged assignments are not valid.
Id. at *3 (citation omitted).
The defendants answered the
complaint on August 29.3
On May 11, 2015, the plaintiffs moved for leave to amend
the complaint, which was granted on November 9.4
The plaintiffs
filed their amended complaint on November 10, asserting four
counts against the defendants arising from approximately 470
Claims listed in the amended complaint.5
Two counts relate to
Claims arising under ERISA Plans: (1) breach of plan provisions
for benefits in violation of ERISA § 502(a)(1)(B), 29 U.S.C.
The defendants also moved for partial reconsideration of the
August 14 Opinion on August 28. Judge Grisea denied the motion
on February 25, 2015. Mbody Minimally Invasive Surgery, P.C. v.
Empire Healthchoice HMO, Inc., No. 13cv6551, 2015 WL 798082, at
*3 (S.D.N.Y. Feb. 25, 2015).
3
The plaintiffs argue that Judge Grisea, in granting leave to
amend, already considered the issues raised in the instant
motion. The two page Order granting leave to amend, however,
did not do so.
4
Of the Claims, twenty were asserted in the original complaint
and dismissed based on anti-assignment provisions in the August
2014 Opinion. These Claims are listed in paragraph three of the
December 30, 2015 Declaration of Rachel Kramer (the “2015 Kramer
Declaration”).
5
5
§ 1132(a)(1)(B); and (2) failure to provide adequate written
notice and reasons for Claim denials under ERISA § 503(1), 29
U.S.C. 1133(1) and 29 C.F.R. § 2560.503-1.
The other two counts
relate to Claims arising under non-ERISA plans: (3) breach of
the covenant of good faith and fair dealing, and (4) violation
The plaintiffs seek, among
of N.Y. Insurance Law § 3224-a.
other relief, compensatory damages in excess of $4 million.
On December 30, the defendants filed a motion to partially
dismiss the amended complaint.
was reassigned to this Court.
on March 22.
On January 14, 2016, this case
The motion became fully submitted
The defendants seek to dismiss certain Claims
based on the terms of the Plans governing those Claims (the
“Governing Plans”).6
Specifically, defendants move to dismiss
approximately 210 Claims for lack of standing under ERISA, as
these Claims arise under Plans that contain express antiassignment provisions.7
The defendants also seek dismissal of 30
The defendants have submitted 23 documents describing the terms
of the Governing Plans with their motion. Some of these
documents are the Governing Plan contracts themselves while
others are summary plan descriptions.
6
One of the submitted Governing Plan documents, the Community
Rated Group PPO Plan (the “Community Plan”), provided as Exhibit
L of the 2015 Kramer Declaration, is a sample Plan only. In
their reply brief, the defendants withdrew their motion for all
Claims listed in the 2015 Kramer Declaration as governed by the
Community Plan. Accordingly, this Opinion does not address
Claims listed in the 2015 Kramer Declaration as governed by the
Community Plan.
7
6
Claims as untimely under contractual limitations periods and
eight Claims with unidentified policy numbers.8
DISCUSSION
When deciding a motion to dismiss under Rule 12(b), Fed. R.
Civ. P., a court must accept all allegations in the complaint as
true and draw all inferences in the non-moving party’s favor.
Loginovskaya v. Batratchenko, 764 F.3d 266, 269-70 (2d Cir.
2014).
“To survive a motion to dismiss under Rule 12(b)(6), a
complaint must allege sufficient facts which, taken as true,
state a plausible claim for relief.”
Keiler v. Harlequin
Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014); Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” (citation omitted)).
A claim
has facial plausibility when “the factual content” of the
complaint “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016) (citation
omitted).
“Because a Rule 12(b)(6) motion challenges the complaint as
presented by the plaintiff, taking no account of its basis in
The defendants also sought to dismiss two claims arising under
Medicare and Federal Employee Health Benefit Plans. The
plaintiffs have voluntarily excluded these two Claims from the
amended complaint. Accordingly, this ground for dismissal is
mooted.
8
7
evidence, a court adjudicating such a motion may review only a
narrow universe of materials.”
Goel v. Bunge, Ltd., --- F.3d
---, 2016 WL 1696597, at *2 (2d Cir. Apr. 28, 2016).
As such,
courts “do not look beyond facts stated on the face of the
complaint, documents appended to the complaint or incorporated
in the complaint by reference, and matters of which judicial
notice may be taken.”
Id. (citation omitted).
Nonetheless, “in
some cases, a document not expressly incorporated by reference
in the complaint is nevertheless ‘integral’ to the complaint
and, accordingly, a fair object of consideration on a motion to
dismiss.”
Id. at *3.
A document is integral to the complaint
“where the complaint relies heavily upon its terms and effect.”
Id. (citation omitted).
In most instances where this exception is recognized,
the incorporated material is a contract or other legal
document containing obligations upon which the
plaintiff’s complaint stands or falls, but which for
some reason -- usually because the document, read in
its entirety, would undermine the legitimacy of the
plaintiff’s claim -- was not attached to the
complaint.
Id. (citation omitted).
The Governing Plan documents submitted by the defendants
firmly fit into the category of documents integral to a
complaint.
Courts routinely consider ERISA plan documents and
their summary plan descriptions on motions to dismiss.
See,
e.g., Faber v. Metro. Life Ins. Co., 648 F.3d 98, 100-01 (2d
8
Cir. 2011); Neuroaxis Neurosurgical Associates, PC v. Costco
Wholesale Co., 919 F. Supp. 2d 345, 352-55 (S.D.N.Y. 2013).
The
Governing Plan documents are precisely the kind of “contracts”
upon which the plaintiffs’ amended complaint stands or falls.
Accordingly, they can be considered on a motion to dismiss.
I.
Standing Under ERISA
Defendant seeks dismissal of approximately 210 Claims
arising under ERISA Plans with anti-assignment provisions.9
Pursuant to ERISA § 502(a)(1)(B), health plan participants and
beneficiaries are authorized to bring civil enforcement actions
to recover plan benefits.10
See Rojas v. Cigna Health & Life
Ins. Co., 793 F.3d 253, 256 (2d Cir. 2015).
The terms
“participant” and “beneficiary” are defined by statute.
U.S.C. § 1002(2)(B)(7)-(8).
29
Healthcare providers are not
beneficiaries or participants under ERISA.
See Rojas, 793 F.3d
These Claims are listed in paragraph two of the 2015 Kramer
Declaration. The Claims considered by this Opinion do not
include the two Claims listed in paragraph two as arising under
the Community Plan.
9
The standing requirements discussed here also apply to the
plaintiffs’ ERISA § 503 claim. As Judge Grisea held in the
August 2014 Opinion, while ERISA § 503 does not create a private
right of action, a plaintiff may sue for equitable relief under
ERISA § 502(a)(3) as a “participant, beneficiary, or fiduciary”
to enforce § 503. 29 U.S.C. § 1132(a)(3); see also Tolle v.
Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992); August
2014 Opinion, 2014 WL 4058321, at *4. The plaintiffs do not
allege that they fall under any of these three categories.
10
9
at 257-58.
The plaintiffs concede that they are neither
participants nor beneficiaries under the Plans.
While § 502 generally permits only the parties specifically
enumerated in the statute to sue for relief, there is a “narrow
exception” for “healthcare providers to whom a beneficiary has
assigned his claim in exchange for health benefits.”
Am.
Psychiatric Ass’n v. Anthem Health Plans, Inc., --- F.3d ---,
2016 WL 2772853, at *7 (2d Cir. May 13, 2016) (citation
omitted).
In order for an assignee to prevail on an ERISA
claim, however, the assignee must establish the existence of a
valid assignment that comports with the terms of the benefits
plan.
Kennedy v. Conn. Gen. Life Ins. Co., 924 F.2d 698, 700
(7th Cir. 1991); see also Spinedex Physical Therapy USA Inc. v.
United Healthcare of Arizona, Inc., 770 F.3d 1282, 1296 (9th
Cir. 2014); Physicians Multispecialty Grp. v. Health Care Plan
of Horton Homes, Inc., 371 F.3d 1291, 1293 (11th Cir. 2004);
City of Hope Nat’l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223,
228 (1st Cir. 1998) (“City of Hope”).
Assuming an ERISA plan does not dictate the form of a valid
assignment or bar assignment altogether, a court may draw upon
federal common law in assessing whether any purported assignment
was effective.
See, e.g., Rojas, 793 F.3d at 258-59; see also
I.V. Servs. Am. Inc. v. Trs. Am. Consulting Eng’rs Council, 136
F.3d 114, 117 n.2 (2d Cir. 1998).
10
In discerning the content of
federal common law, courts draw inspiration from state law to
the extent that state law is not inconsistent with the federal
policies underlying ERISA.
Critchlow v. First UNUM Life Ins.
Co. Am., 378 F.3d 246, 256 (2d Cir. 2004).
may take a variety of forms.
Valid assignments
Montefiore Med. Ctr. v. Teamsters
Local 272, 642 F.3d 321, 329 n.8 (2d Cir. 2011).
At common law,
an assignment can be made “either orally or by writing” unless a
statute or contract provides otherwise.
Contracts § 324.
Restatement (Second) of
Under New York law “[n]o particular words are
necessary to effect an assignment; it is only required that
there be a perfected transaction between the assignor and
assignee, intended by those parties to vest in the assignee a
present right in the things assigned.”
Condren, Walker & Co. v.
Portnoy, 856 N.Y.S.2d 42, 43 (1st Dep’t 2008) (citation
omitted).
Where ERISA plan language unambiguously prohibits
assignment, however, an attempted assignment will be
ineffectual.
See, e.g., Spinedex Physical Therapy USA Inc., 770
F.3d at 1296; Physicians Multispecialty Grp., 371 F.3d at 1295;
LeTourneau Lifelike Orthotics & Prosthetics, Inc. v. Wal–Mart
Stores, Inc., 298 F.3d 348, 352 (5th Cir. 2002) (“LeTourneau”);
City of Hope, 156 F.3d at 229.
Thus, “a healthcare provider who
has attempted to obtain an assignment in contravention of a
11
plan’s terms is not entitled to recover under ERISA.”
Neuroaxis, 919 F. Supp. 2d at 352.
In determining whether contract language prohibits
assignment to a healthcare provider, courts apply traditional
principles of contract interpretation.
See LeTourneau, 298 F.3d
at 352; cf. Critchlow, 378 F.3d at 256; City of Hope, 156 F.3d
at 229.
The Second Circuit “interpret[s] ERISA plans in an
ordinary and popular sense as would a person of average
intelligence and experience.”
Critchlow, 378 F.3d at 256.
Furthermore, because the Second Circuit applies “rules of
contract law to ERISA plans, a court must not rewrite, under the
guise of interpretation, a term of the contract when the term is
clear and unambiguous.”
Burke v. PriceWaterHouseCoopers LLP
Term Disability Plan, 572 F.3d 76, 81 (2d Cir. 2009) (citation
omitted).
A. Anti-Assignment Provisions of Governing Plans
Here, the plaintiffs do not have ERISA standing to pursue
Claims governed by Plans with anti-assignment provisions.
The
anti-assignment provisions in the Governing Plans unambiguously
prohibit assignment.
For example, the Empire Healthchoice HMO,
Inc. Plan described above expressly prohibits Enrollees from
“assign[ing] any benefits or monies due under this Contract to
any person, corporation, or other organization” and provides
that any assignment by an Enrollee “will be void.”
12
The other
Governing Plans contain similar clear language, providing, for
example, that “[o]nly Covered Persons can receive the benefits
provided under this Contract for payment” and “any attempt to
assign benefits or payments for benefits will be void unless
authorized by us in writing.”11
These provisions expressly and
unambiguously bar assignment and, as such, the plaintiffs’
alleged assignment of these Claims are invalid.
B. Estoppel
As described above, the plaintiffs allege that the
defendants have waived these anti-assignment provisions by
making direct payments to the plaintiffs, routinely sending
communications to the plaintiffs addressing them as Plan
beneficiaries, and inviting the plaintiffs to initiate
administrative appeals of claims decisions.
Principles of
estoppel can be applied in the ERISA context in “extraordinary
circumstances.”
Paneccasio v. Unisource Worldwide, Inc., 532
F.3d 101, 109 (2d Cir. 2008) (citation omitted).
Estoppel in
ERISA cases has four elements: (1) a promise, (2) reliance, (3)
injury, and (4) injustice if the promise is not enforced.
Id.
Prior payments to healthcare providers do not create a “viable
estoppel claim,” however, where ERISA plans unambiguously
prohibit assignments.
Riverview Health Institute LLC v. Med.
The anti-assignment language of each relevant Governing Plan
is listed in paragraph two of the 2015 Kramer Declaration.
11
13
Mutual of Ohio, 601 F.3d 505, 523 (6th Cir. 2010).
The Sixth
Circuit explained the reasoning behind this conclusion as
follows:
Principles of estoppel cannot be applied to vary
the terms of unambiguous plan documents; estoppel
can only be invoked in the context of ambiguous
plan provisions. There are at least two reasons
for this. First, as we have seen, estoppel
requires reasonable or justifiable reliance by
the party asserting the estoppel. That party’s
reliance can seldom, if ever, be reasonable or
justifiable if it is inconsistent with the clear
and unambiguous terms of plan documents available
to or furnished to the party. Second, to allow
estoppel to override the clear terms of plan
documents would be to enforce something other
than the plan documents themselves. That would
not be consistent with ERISA.
Id. at 521 (citation omitted); see also Neuroaxis, 919 F. Supp.
2d at 355-56.
Here, the plain language of the Governing Plans is clear
and the plaintiffs do not allege any extraordinary circumstances
that warrant the application of estoppel.12
Notably, the parties
have already litigated whether direct payments to the plaintiffs
waived the anti-assignment provisions.
Judge Grisea explicitly
held that this argument had no merit, reasoning that “insurance
companies routinely make direct payments to healthcare providers
without waving anti-assignment provisions.”
August 2014
Accordingly, the plaintiffs’ reliance on Biomed
Pharmaceuticals, Inc. v. Oxford Health Plans (N.Y.), Inc., No.
10cv7427, 2011 WL 803097 (S.D.N.Y. Feb. 18, 2011), is
inapposite, as Biomed involved an ambiguous anti-assignment
provision. Id. at *5.
12
14
Opinion, 2014 WL 4058321, at *3; see also Riverview Health
Institute LLC, 601 F.3d at 523; Neuroaxis, 919 F. Supp. 2d at
355-56.
Moreover, the plaintiffs have not established that
administrative appeals or the communications sent to the
defendants constituted any sort of promise that overrode the
unambiguous language of the Governing Plans.
Accordingly, the
defendants are not estopped from relying on the Governing Plans’
anti-assignment provisions.
C. “Authorized Representatives” Under 29 C.F.R. § 2560.5031(b)(4)
The plaintiffs also maintain that regardless of the antiassignment provisions, they are entitled to pursue ERISA claims
as their patients’ “authorized representatives” under 29 C.F.R.
§ 2560.503-1(b)(4).
Section 2560.503-1(b)(4) states that claims
procedures for a plan will be deemed reasonable only if they “do
not preclude an authorized representative for a claimant from
acting on behalf of such a claimant in pursuing a benefit claim
or appeal of an adverse benefit determination.”
The plaintiffs
fail to explain how their purported status as “authorized
representatives” under this regulation is distinguishable from
their theory that they are proper assignees of their patients’
Claims.
Indeed, the cases cited by the plaintiffs for their
§ 2560.503-1 theory of standing, none of which are from this
district, all focus on whether the plaintiff providers received
15
a valid assignment of rights from plan members.
Int’l Air Med.
Servs. v. Triple-S Salud Inc., No 15cv149, 2015 WL 5158832, at
*1 (D. Ariz. Sept. 3, 2015); Parkridge Med. Ctr., Inc. v. CPC
Logistics, Inc. Grp. Benefit Plan, No. 12cv124, 2013 WL 3976621,
at *9-10 (E.D. Tenn. Aug. 2, 2013); Spectrum Health v. Valley
Truck Parts, No. 07cv1091, 2008 WL 2246048, at *4 (W.D. Mich.
May 30, 2008).
Accordingly, the plaintiffs “authorized
representative” theory of standing also fails because of the
unambiguous anti-assignment provisions of the Governing Plans.
D. Assignment of Causes of Action
The plaintiffs argue that the anti-assignment provisions in
the Governing Plans bar only the assignment of “benefits,” not
causes of action.
Language barring the assignment of health
plan benefits has not been read by courts to exclude causes of
action.
See, e.g., August 2014 Opinion, 2014 WL 4058321, at *2-
3; Neuroaxis, 919 F. Supp. 2d at 352-55.
Moreover, this
argument is internally inconsistent as it would allow the
plaintiffs to pursue benefit payments in court, but
contractually bar them from receiving those payments.
II.
Time-Barred Claims
The defendants also seek to dismiss 30 Claims, newly raised
in the amended complaint, that are barred by contractual
16
limitations periods.13
Each of these Claims involves service
dates between July 2011 and March 2014, and are governed by
either two or three year limitations periods.
The contractual
limitations periods of the applicable Governing Plans are
unambiguous, and the filing of these Claims with the amended
complaint falls outside of these contractual periods.
These 30
Claims are therefore time-barred.
The plaintiffs assert that these claims relate back to
conduct alleged in the original complaint, citing Fed. R. Civ.
P. 15(c)(1)(B).
Rule 15(c)(1)(B) provides that an amendment to
a pleading “relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out –- or
attempted to be set out –- in the original pleading.”
The 30 new Claims do not arise from the same conduct
alleged in the original complaint.
While the plaintiffs were
the providers for all Claims at issue in this case, these new
Claims involve different Enrollees who sought different health
care services on different dates of service.
These Claims
therefore arise from different transactions and occurrences that
do not relate back to the original complaint.
These Claims are listed in paragraph four of the 2015 Kramer
Declaration. The 30 Claims do not include the two Claims listed
in paragraph four as arising under the Community Plan.
13
17
III. Unidentified Claims
The defendants move to dismiss eight Claims without policy
numbers14 on the ground that the plaintiffs have failed to comply
with the notice pleading requirements of Fed. R. Civ. P. 8.
Rule 8(a) requires that a claim for relief must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief,” and “a demand for the relief sought.”
The pleading of these eight Claims meets the requirements
of Rule 8.
The amended complaint lists the date of service and
balance owed for each of these Claims.
Thus, it provides
adequate notice of the services rendered by the plaintiffs and
the amount the plaintiffs seek to recover.
That the policy
numbers are not yet identified does not render these eight
Claims implausible.
The parties may address the issue of
missing policy numbers during discovery.
IV.
Consideration of Governing Plan Documents
The plaintiffs argue that the Court may not properly
consider the Governing Plans documents submitted by the
defendants to resolve a motion to dismiss.
Specifically, the
plaintiffs argue that the 2015 Kramer Declaration does not
establish that the submitted Governing Plans documents are
These eight unidentified Claims are listed in paragraph seven
of the 2015 Kramer Declaration.
14
18
enforceable “written instruments,” particularly since many of
them are summary plan descriptions.15
The plaintiffs rely on CIGNA Corps. v. Amara, 563 U.S. 421
(2011), to contend that the Supreme Court held that a summary
plan description is not an enforceable written instrument under
29 U.S.C. § 1102(a)(1).
CIGNA Corps. involved a claim alleging
deliberate misrepresentations of the governing plan in the
summary plan description.
Id. at 431-32.
The Court, declining
to enforce the misleading terms of the summary plan descriptions
as an equitable remedy, concluded that the summary documents
“provide communication with beneficiaries about the plan,” but
“their statements do not themselves constitute the terms of the
plan for purposes of § 502(a)(1)(B).”
Id. at 438.
Here, the
plaintiffs do not argue that the terms of the summary plan
descriptions are misleading.16
The plaintiffs’ assertion that the Governing Plan documents
may not be authentic is conclusory and an obvious attempt to
manufacture a factual dispute. The plaintiffs do not directly
challenge the authenticity of these documents, but only
speculate that the Court should not trust that they are binding
and governing.
15
The plaintiffs also objected to the defendants’ “self-serving
selection” of excerpts from the Governing Plan documents. In
response, the defendants submitted full copies of the Governing
Plan documents with their reply brief. The plaintiffs have not
requested an opportunity to submit a sur-reply in order to
pursue their assertion that the excerpts chosen by the
defendants were misleading.
16
19
CONCLUSION
The defendants’ December 30, 2015 motion to dismiss is
granted in part.
The defendants’ motion to dismiss Claims
arising under Governing Plans with anti-assignment provisions
and Claims barred by contractual limitations periods is granted.
The defendants’ motion to dismiss Claims without identified
policy numbers is denied.
SO ORDERED:
Dated:
New York, New York
May 19, 2016
________________________________
DENISE COTE
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?