Savides v. Visiting Nurse Services of New York et al

Filing 41

OPINION AND ORDER: For the foregoing reasons, Defendants motion to dismiss is DENIED. The parties shall submit a joint proposed case management plan by April 3, 2019, and a letter stating whether the parties are willing to participate in a settlement conference with the assigned Magistrate Judge or mediation in the Courts mediation program. The Clerk of Court is respectfully directed to close the motion at Docket Number 32 . (Signed by Judge Lorna G. Schofield on 03/13/2019) (jcs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MEDINE SAVIDES,
:
Plaintiff,
:
:
-against:
:
UNITED HEALTHCARE SERVICES, INC.,
Defendant. :
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3/13/2019

18 Civ. 4621 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Medine Savides, Executrix of the Estate of Helen Krafft, brings this action
alleging that Defendant United Healthcare Services, Inc. (“United Healthcare”) violated the
Employee Retirement Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., by failing to reimburse
Plaintiff for certain hospice room and board expenses. Defendant moves pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss the Amended Complaint (the “Complaint”) as time
barred under the terms of the applicable healthcare plan. For the following reasons, Defendant’s
motion is denied.
BACKGROUND
The following facts are taken from the Complaint and accepted as true only for the
purposes of this motion. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016).
Ms. Krafft, the decedent for whom Plaintiff is executrix, was insured under a United
Healthcare Plan (“the Plan”). The Plan covered Hospice Care and Services, including room and
board. From January 2011 to March 2012, Ms. Krafft received hospice services, including room
and board, through a United Healthcare in-network provider. For these services, Ms. Krafft was
billed about $132,000, which she paid out-of-pocket.

Beginning in February 2011 through July 2015, Plaintiff submitted claims and appeals to
United Healthcare for reimbursement of Ms. Krafft’s hospice room and board. In a letter to
Plaintiff dated August 14, 2015, United Healthcare stated that it would process Plaintiff’s claim,
and specifically said, “Based on the information reviewed, we are pleased to inform you that we
will process the claim(s) relevant to this service(s) accordingly. Please note you are responsible
for any applicable copayment, coinsurance, and/or deductible as stated in your Benefit Plan.”
However, Plaintiff never received payment.
On March 19, 2018, Plaintiff initiated this action in New York State Court. Defendant
removed the proceeding to this Court on May 24, 2018.
STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). It is not enough for a plaintiff to allege facts that are
consistent with liability; the complaint must “nudge[]” claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. “To survive dismissal, the plaintiff must provide the
grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief
above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir. 2007) (quoting Twombly, 550 U.S. at 555). On a Rule 12(b)(6) motion, “‘all factual
allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff’s

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favor.’” Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016) (quoting
Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015)).
“A complaint is also deemed to include any written instrument attached to it as an
exhibit, materials incorporated in it by reference, and documents that, although not incorporated
by reference, are integral to the complaint.” Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d
75, 80 (2d Cir. 2018) (internal quotation marks omitted). “Even where a document is
considered integral to the complaint, it must be clear on the record that no dispute exists
regarding the authenticity or accuracy of the document. It must also be clear that there exist[s]
no material disputed issues of fact regarding the relevance of the document.” Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) (internal quotation marks and citation
omitted). “[T]he requirement that there be no dispute about the authenticity of documents
integral to the complaint has been interpreted strictly: even implicit, conclusory, contradictory, or
implausible objections to the authenticity or accuracy of a document render consideration
impermissible.” Mbody Minimally Invasive Surgery, P.C. v. United Healthcare Ins. Co., No. 14
Civ. 2495, 2016 WL 4382709, at *7 (S.D.N.Y. Aug. 16, 2016) (internal quotation marks
omitted).
DISCUSSION
Because the Plan cannot be considered on this motion to dismiss, Defendant’s motion is
denied. Although the Plan is relevant and integral to the Complaint, Plaintiff objects to the
accuracy and authenticity of the Plan that Defendant proffers. Plaintiff maintains that Defendant
did not show that it followed appropriate procedures to amend Plaintiff’s Plan, provided Plaintiff
with appropriate notice or that Plaintiff ever received a copy of the 2009 Plan. Since “even
implicit, conclusory, contradictory, or implausible objections to the authenticity or accuracy of

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a document render consideration impermissible,” Mbody Minimally Invasive Surgery, 2016 WL
4382709, at *7 (internal quotation marks omitted), Plaintiff’s objections prevent consideration of
the Plan. See, e.g., Nicosia, 834 F.3d at 231 (“If . . . there is a dispute as to the relevance,
authenticity, or accuracy of the documents relied upon, the district court may not dismiss the
complaint with those materials in mind.”); Fangrui Huang v. GW of Flushing I, Inc., No. 17 Civ.
3181, 2019 WL 145528, at *6 (E.D.N.Y. Jan. 9, 2019) (declining to consider a notice because
plaintiff disputed the notice’s existence or that it was provided to him); Davis v. McCready, 283
F. Supp. 3d 108, 117–18 (S.D.N.Y. 2017) (declining to consider medical record because plaintiff
alleged he never received a copy of it); Mbody Minimally Invasive Surgery, 2016 WL 4382709,
at *7 (declining to consider plan documents where plaintiffs objected to the authenticity of the
documents).
Without the Plan, Defendant has no basis to assert that this action is time barred under the
Plan’s terms. See Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (“Dismissal under
Fed.R.Civ.P. 12(b)(6) is appropriate when a defendant raises a statutory bar, such as lack of
timeliness, as an affirmative defense and it is clear from the face of the complaint, and matters of
which the court may take judicial notice, that the plaintiff’s claims are barred as a matter of
law.”) (internal quotation marks omitted).
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is DENIED. The parties shall
submit a joint proposed case management plan by April 3, 2019, and a letter stating whether the
parties are willing to participate in a settlement conference with the assigned Magistrate Judge or
mediation in the Court’s mediation program.

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The Clerk of Court is respectfully directed to close the motion at Docket Number 32.
Dated: March 13, 2019
New York, New York

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