MSP Recovery Claims, Series LLC v. Hereford Insurance Company

Filing 42

OPINION & ORDER re: 37 FIRST MOTION to Dismiss First Amended Complaint filed by Hereford Insurance Company. For the reasons set forth above, MSP lacks Article III standing. Accordingly, Hereford's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 37, and close the case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 1/11/2022) (mml) Transmission to Orders and Judgments Clerk for processing.

Case 1:20-cv-04776-ER Document 42 Filed 01/11/22 Page 1 of 27

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MSP RECOVERY CLAIMS, SERIES LLC,
Plaintiff,
OPINION & ORDER

– against –

20 Civ. 4776 (ER)

HEREFORD INSURANCE COMPANY,
Defendant.
RAMOS, D.J.:
MSP Recovery Claims, Series LLC (“MSP”) brings this putative class action
against Hereford Insurance Company (“Hereford”). MSP alleges that Hereford
systematically failed to honor its primary payer obligations under the Medicare
Secondary Payer Act (the “Act”), 42 U.S.C. § 1395y, by not paying for or reimbursing
medical expenses resulting from injuries sustained in automobile and other accidents that
should have been paid by Hereford but, instead, were paid by Medicare or Medicare
Advantage Organizations (“MAOs”). First Amended Complaint (“FAC”), Doc. 26, at ¶
1.
MSP brings this class action pursuant to Federal Rule of Civil Procedure 23, on
behalf of all class members or their assignees who paid for accident-related medical
expenses, when Hereford was statutorily required to do so as the primary payer and failed
to do so. 1 Id. at ¶¶ 69–70; see also id. at ¶¶ 69–76. MSP asserts a private cause of action
pursuant to 42 U.S.C. § 1395y(b)(3)(A) to recover double damages from Hereford for its
failure to make or reimburse these payments. Id. at ¶ 91.

MSP defines the putative class in the First Amended Complaint. See First Amended Complaint (“FAC”),
Doc. 26, at ¶ 77.
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�is case is one of a series of lawsuits brought by Plaintiff or its affiliated entities
against various insurance companies, alleging that they have incurred costs that are
reimbursable pursuant to the Act. Such cases in this district have routinely been
dismissed for lack of standing. See, e.g., MSP Recovery Claims, Series LLC v. AIG Prop.
Cas. Co., No. 20 Civ. 2102 (VEC), 2021 WL 1164091 (S.D.N.Y. Mar. 26, 2021),
reconsideration denied, No. 20 Civ. 2102 (VEC), 2021 WL 3371621 (S.D.N.Y. Aug. 2,
2021); MSP Recovery Claims, Series LLC v. Tech. Ins. Co., Inc., No. 18 Civ. 8036 (AT),
2020 WL 91540 (S.D.N.Y. Jan. 8, 2020); MSP Recovery Claims, Series LLC v. New York
Cent. Mut. Fire Ins. Co., No. 19 Civ. 211 (MAD) (TWD), 2019 WL 4222654 (N.D.N.Y.
Sept. 5, 2019).
On May 28, 2021, Hereford filed a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to
state a claim under Rule 12(b)(6). See Motion to Dismiss FAC, Doc. 37; 2 see also
Memorandum of Law in support of Motion to Dismiss FAC (“Mot.”), Doc. 36.
Because MSP has not adequately alleged that it has standing, the Court lacks
subject matter jurisdiction. Accordingly, Hereford’s motion to dismiss is GRANTED.
Without subject matter jurisdiction, the Court declines to consider Hereford’s remaining
arguments.

On May 28, 2021, Hereford filed its motion to dismiss the FAC, which resulted in a deficient docket entry
due to a filing error. Doc. 34. On June 3, Hereford re-filed its motion to dismiss. Motion to Dismiss FAC,
Doc. 37.
2

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A.

Factual Background

Pursuant to the Act, Medicare is prohibited from paying for “any item or service”
if “payment has been made, or can reasonably be expected to be made” by a “primary
plan.” 42 U.S.C. § 1395y(b)(2)(A). Primary plans include group health plans, workers’
compensation, automobile or liability insurance, and no-fault insurance. See id.
However, when the primary plan “has not made or cannot reasonably be expected to
make payment with respect to such item or service,” Medicare can make the payment. 42
U.S.C. § 1395y(b)(2)(B)(i). In such instances, the primary plan “shall reimburse”
Medicare “if it is demonstrated that such primary plan has or had a responsibility to make
payment with respect to such item or service.” 42 U.S.C. § 1395y(b)(2)(B)(ii). �e Act
includes a private cause of action that provides for the recovery of double damages when
a primary plan fails to make these required payments. 42 U.S.C. § 1395y(b)(3)(A).
“Under this statutory scheme, primary plans are also required to pay [MAOs],
which are private insurers with whom Medicare sub-contracts to provide services to
Medicare patients.” AIG Prop. Cas. Co., 2021 WL 1164091, at *1 (citing MSPA Claims
1, LLC v. Tenet Fla., Inc., 918 F.3d 1312, 1316–17 (11th Cir. 2019) (describing the
history of the Act and MAOs); 42 U.S.C. § 1395w-22(a)(4) (applying the primary plan
payment requirement to MAOs)), reconsideration denied, 2021 WL 3371621. While
MSP itself is not an MAO, MSP’s assignors are MAOs. FAC at ¶ 3.
MSP alleges that Hereford is an insurer that provides no-fault or med-pay
insurance to its customers, including Medicare beneficiaries. Id. at ¶ 2. With respect to
accidents involving Medicare beneficiaries, MSP alleges that Hereford is a primary plan

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under the Act, meaning that its obligation to pay for accident-related medical expenses is
primary, while Medicare’s obligation is secondary. Id. (citing 42 U.S.C. §
1395y(b)(2)(A); 42 C.F.R. § 411.21).
MSP alleges that the purpose of the Act is to ensure that Medicare and the MAOs
do not pay for accident-related medical expenses that should be paid by primary payers,
such as Hereford. Id. at ¶ 4. MSP argues that primary payers like Hereford deliberately
and systematically avoid paying for or reimbursing these expenses pursuant to their
obligations under the Act, thereby passing them on to Medicare and the MAOs. Id. at ¶
7. MSP further alleges that the private cause of action established under the Act ensures
that Medicare and the MAOs have a mechanism to guarantee that primary payers will pay
for or reimburse these expenses. Id. at ¶¶ 4, 8. MSP contends that pursuant to federal
regulations promulgated under the Act, primary payers are also affirmatively required to
identify whether their insured enrollees are Medicare beneficiaries and report their
primary payer responsibility to the Centers for Medicare and Medicaid Services
(“CMS”). Id. at ¶ 5. �ese requirements are meant to ease the overwhelming burden and
expenses borne by Medicare and the MAOs. Id. at ¶ 6.
MSP brings this action seeking double damages for Hereford’s purported failure
to properly pay for or reimburse conditional payments made by MAOs or their assignees
on behalf of Medicare beneficiaries that it was allegedly required to pay for under a nofault insurance policy. Id. at ¶¶ 12–14. In connection with Hereford’s alleged failure to
make required payments, MSP alleges that Hereford deliberately failed to comply with its
reporting requirements under the Act and refused to coordinate benefits with the MAOs,
including MSP. Id. at ¶ 17.

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�e MAOs assigned their recovery and reimbursement rights to MSP’s Series
LLCs. Id. at ¶ 38. In turn, MSP possesses the right to sue on behalf of each of its
designated Series LLCs. 3 Id.; see also Second Amendment to the Limited Liability
Company Operating Agreement of MSP Recovery Claims, Series LLC (FAC Ex. B),
Doc. 26-2, at 1 (“For avoidance of doubt, [MSP] is authorized to pursue or assert any
claim or suit capable of being asserted by any designated series arising from, or by virtue
of, an assignment to a designated series.”). �us, MSP brings this action on behalf of its
Series LLCs, which were purportedly assigned certain recovery rights by MAOs. See
FAC at ¶¶ 35, 36, 38–40.
To identify conditional payments made by MSP’s assignors for which Hereford
was responsible, MSP utilized “a proprietary system that matches the health care claims
data from its Assignors to the publicly available reporting data from CMS and police
crash reports available in limited jurisdictions, as well as the claims data made available
by primary payers like [Hereford].” Id. at ¶ 9; see id. at ¶¶ 20–24. Specifically, MSP
used certain medical diagnosis and procedure codes to identify information regarding an
enrollee’s claim, such as the type of injury suffered, the circumstances that caused the
injury, whether the listed primary insurance provider made payment, and whether the
insurance carrier was a liability provider. Id. at ¶ 21. �rough a data matching process
using the digital health insurance claims data from MSP’s assignors and Hereford, MSP’s
system also determined the amounts owed. Id. at ¶ 23.

MSP established its Series LLCs “pursuant to Title 6, § 18-215 of the Delaware Code to serve as units of
the Company.” Second Amendment to the Limited Liability Company Operating Agreement of MSP
Recovery Claims, Series LLC (FAC Ex. B), Doc. 26-2, at 1; see also DEL. CODE ANN. tit. 6, § 18-215(a)
(West 2019) (“A limited liability company agreement may establish or provide for the establishment of 1 or
more designated series of members, managers, limited liability company interests or assets.”). Each Series
LLC is owned by and forms a part of MSP. FAC Ex. B at 2.
3

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MSP alleges that in using its system, it has identified “multiple instances in which
Plaintiff’s Assignors made conditional payments for accident-related medical expenses
which should have been [made] by [Hereford].” Id. at ¶ 24. MSP further alleges that it
has identified “numerous instances where [Hereford] admitted, by reporting to CMS, that
it was contractually obligated (pursuant to no-fault insurance policies) to provide primary
payment.” Id. at ¶ 25. �ese instances are listed in Exhibit A to the FAC, which is a twopage spreadsheet allegedly identifying the Medicare beneficiaries for whom MSP’s
assignor and an MAO, Health Insurance Plan of Greater New York, an EmblemHealth
company (“EmblemHealth”), “made conditional payments for accident-related treatments
subject to overlapping primary coverage from [Hereford], which payments have not been
reimbursed.” Id.; see also FAC Ex. A, Doc. 26-1. MSP’s system also purportedly
identified other instances in which its assignors made conditional payments on behalf of
enrollees for which the primary payer could not be identified, because either (1) the
primary payer failed to report its responsibility as required by the Act or (2) police crash
reports that would identify the proper primary payer were not available to MSP in the
jurisdiction in which the accident occurred. FAC at ¶ 26.
MSP sets forth two representative “exemplars” of claims which Hereford should
have paid its assignors but failed to do so. Id. at ¶ 46. Specifically, EmblemHealth
allegedly made conditional payments on behalf of two patients, N.G. and A.B., 4 for
accident-related medical expenses. Id. Although Hereford reported its primary payer

In its opposition, MSP gives notice that it will not proceed with its A.B. claim, and will instead rely solely
on its N.G. claim. Memorandum of Law in opposition to Motion to Dismiss FAC (“Opp.”), Doc. 39, at 8
n.4. �erefore, for the purposes of this motion to dismiss with respect to the exemplar claims, the Court
considers the N.G. claim only.
4

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responsibility for the expenses, it allegedly failed to reimburse EmblemHealth for these
conditional payments. Id.
MSP alleges that N.G. sustained injuries in an accident on October 14, 2014,
which required medical services, and that N.G. was enrolled in an MAO plan issued by
EmblemHealth. Id. at ¶¶ 47–48. In addition, N.G. was a Medicare beneficiary whose
accident-related medical expenses were covered pursuant to a no-fault policy issued by
Hereford. Id. at ¶¶ 49–50, 53; see also FAC Ex. C (N.G.’s diagnosis codes and injuries in
connection with N.G.’s accident), Doc. 26-3. MSP further alleges that after medical
services were provided, the medical providers billed EmblemHealth for N.G.’s medical
expenses, of which EmblemHealth paid a portion. FAC at ¶¶ 51–52. In connection with
N.G.’s accident-related medical expenses, Hereford allegedly reported information
regarding the accident to CMS, including its primary payer responsibility under
“Hereford Insurance Company” and the type of insurance policy involved. Id. at ¶ 54.
MSP contends that this exemplar illustrates Hereford’s failures to fulfill its statutory
duties as a no-fault insurer. Id. at ¶ 46; see also id. at ¶ 55. MSP further alleges that
EmblemHealth assigned the claims associated with this patient to one of MSP’s Series
LLCs. Id. at ¶¶ 38 n.4, 40.
MSP argues that it has standing to assert claims for double damages for
Hereford’s alleged failure to reimburse conditional payments made by MSP’s assignors
on a class-wide basis, including the claims associated with N.G. and the claims listed in
Exhibit A. Id. at ¶ 27.
As further discussed below, Hereford acknowledges that N.G. was in an accident
on October 14, 2014, and that it paid for certain medical treatment received by N.G.

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related to that accident. However, Hereford argues that no claim for payment was
submitted for the medical services at the center of MSP’s allegations. At issue is whether
MSP has adequately alleged that these other medical services were sufficiently connected
to the same accident.
B.

Procedural History

MSP filed the complaint on June 22, 2020. Doc. 1. On February 18, 2021,
Hereford moved to dismiss the complaint. Doc. 16. On March 19, MSP filed the FAC.
FAC. On May 28, Hereford filed its motion to dismiss the FAC pursuant to Rules
12(b)(1) and 12(b)(6), in which it argues that MSP has failed to allege the specific and
particularized facts required to establish standing for jurisdiction or a sustainable claim.
Mot. at 1. Specifically, Hereford contends that MSP’s two exemplars and its data system
do not demonstrate any injury-in-fact to MSP, nor do they establish any wrongdoing or
payment obligation on the part of Hereford. Id. Hereford further argues that MSP, as an
assignee of an MAO, does not have a right to a private cause of action, thereby lacking
standing. Id.
II.

LEGAL STANDARD
A.

Rule 12(b)(1)

Rule 12(b)(1) requires that an action be dismissed for lack of subject matter
jurisdiction when the district court lacks the statutory or constitutional power to
adjudicate the case. Fed. R. Civ. P. 12(b)(1); see also Sokolowski v. Metro. Transp. Auth.,
723 F.3d 187, 190 (2d Cir. 2013). “�e party invoking federal jurisdiction bears the
burden of establishing that jurisdiction exists.” Conyers v. Rossides, 558 F.3d 137, 143
(2d Cir. 2009) (internal quotation marks omitted) (quoting Sharkey v. Quarantillo, 541

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F.3d 75, 82 (2d Cir. 2008)). When deciding a motion to dismiss under Rule 12(b)(1) at
the pleadings stage, the court “must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the plaintiff’s favor.” Id. (internal
quotation marks omitted) (quoting Sharkey, 541 F.3d at 83). “However, argumentative
inferences favorable to the party asserting jurisdiction should not be drawn.” Atl. Mut.
Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); see also
Conyers, 558 F.3d at 143 (“[E]ven on a motion to dismiss, courts are not bound to accept
as true a legal conclusion couched as a factual allegation.” (internal quotation marks
omitted)).
Courts recognize two types of Rule 12(b)(1) motions: facial and factual. AIG
Prop. Cas. Co., 2021 WL 1164091, at *3, reconsideration denied, 2021 WL 3371621.
“When the Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the
complaint or the complaint and exhibits attached to it . . . the plaintiff has no evidentiary
burden. �e task of the district court is to determine whether the [p]leading alleges facts
that affirmatively and plausibly suggest that the plaintiff has standing to sue.” Id.
(quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016)). “On the
other hand, when the challenge is fact-based, defendants may proffer evidence beyond the
[p]leading, and the plaintiff may come forward with its own evidence to controvert that
evidence.” Id. (citing Carter, 822 F.3d at 57). �e court may consider evidence outside
of the pleadings, such as affidavits, to resolve the disputed jurisdictional fact issues.
Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000);
see also Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citing
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)), aff’d, 561 U.S. 247 (2010).

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“[T]he district court will need to make findings of fact in aid of its decision as to
standing.” Carter, 822 F.3d at 57.
B.

Rule 12(b)(6)

Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to
dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the plaintiff’s favor. Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012). However, the Court is not
required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements
of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Further, the Court is not obliged to reconcile and
accept as true “pleadings that are contradicted by other matters asserted or relied upon or
incorporated by reference . . . .” Xin Wei Lin v. Chinese Staff & Workers’ Ass’n, No. 11
Civ. 3944 (RJS), 2012 WL 5457493, at *4 (S.D.N.Y. Nov. 8, 2012) (quoting Fisk v.
Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005)), aff’d, 527 F. App’x 83 (2d Cir.
2013).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). A claim is facially plausible “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).
Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of

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discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79. If
the plaintiff has not “nudged [its] claims across the line from conceivable to plausible,
[the] complaint must be dismissed.” Twombly, 550 U.S. at 570.
“When a defendant moves to dismiss under Rule 12(b)(1) for lack of subjectmatter jurisdiction, and moves to dismiss on other grounds, the Court must generally
consider the Rule 12(b)(1) motion first.” AIG Prop. Cas. Co., 2021 WL 1164091, at *3
(citing Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990)),
reconsideration denied, 2021 WL 3371621.
III.

DISCUSSION
A.

Legal Standard

“Article III, § 2, of the Constitution restricts the federal ‘judicial Power’ to the
resolution of ‘Cases’ and ‘Controversies.’ �at case-or-controversy requirement is
satisfied only where a plaintiff has standing.” Sprint Commc’ns Co., L.P. v. APCC Servs.,
Inc., 554 U.S. 269, 273 (2008) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
(2006)). “[I]n order to have Article III standing, a plaintiff must adequately establish: (1)
an injury in fact (i.e., a concrete and particularized invasion of a legally protected
interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in
fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and
not merely speculative that the plaintiff’s injury will be remedied by the relief plaintiff
seeks in bringing suit).” Id. at 273–74 (internal quotation marks and alterations omitted)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
If a party lacks Article III standing, a court has no subject matter jurisdiction to
hear its claims. Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco

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Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). �us, the question of standing
must be resolved prior to deciding a case on the merits. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101 (1998).
B.

MSP’s Article III Standing Over N.G.’s Claim
i.

MSP Has Not Adequately Pled Injury

To satisfy the first element of standing, MSP must suffer an injury-in-fact.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016). �e injury
must be “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted). To be
“particularized,” the injury “must affect the plaintiff in a personal and individual way.”
Id. at 560 n.1. At the pleading stage, “general factual allegations of injury resulting from
the defendant’s conduct may suffice.” Id. at 561. Although the injury must be “clearly
alleg[ed],” which is “lower” than the threshold for supporting a cause of action, Harry v.
Total Gas & Power N. Am., Inc., 889 F.3d 104, 110 (2d Cir. 2018), “[n]evertheless, the
factual allegations must be sufficient to put injury-in-fact into the realm of the plausible.”
AIG Prop. Cas. Co., 2021 WL 1164091, at *4, reconsideration denied, 2021 WL
3371621.
With respect to the exemplar claim for N.G., MSP describes its injury-in-fact as
the economic damages MSP and its assignor EmblemHealth sustained as a direct result of
Hereford’s alleged failure to pay for or reimburse accident-related medical expenses paid
on behalf of N.G. FAC at ¶¶ 10, 14, 19, 24, 41, 88. In order to adequately plead injuryin-fact, MSP must show that the injury was “particularized” or, in other words, that it was
affected “in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. MSP alleges

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that EmblemHealth assigned the claims associated with N.G. to one of its Series LLCs.
FAC at ¶¶ 38 n.4, 40, 68. Furthermore, MSP contends that, pursuant to its Limited
Liability Company Operating Agreement, it has the right to bring a lawsuit on behalf of
each of its Series LLCs. Id. at ¶¶ 38, 68.
Accordingly, to establish the injury-in-fact element with respect to the exemplar
claim, MSP must make adequate factual allegations to support a finding that (1) the MAO
incurred medical expenses as a result of an accident suffered by N.G.; (2) the MAO paid,
but was not reimbursed, for those expenses; (3) the MAO assigned its claim for
reimbursement to one of MSP’s Series LLCs; and (4) MSP has the right to sue on behalf
of the designated Series LLC that received the assignment. AIG Prop. Cas. Co., 2021
WL 1164091, at *4 n.4 (collecting cases brought by the same plaintiff, MSP, or its
affiliated entities against different insurance companies where courts similarly described
injury), reconsideration denied, 2021 WL 3371621. �e Court will consider each of the
four prongs.
First, MSP has adequately alleged that EmblemHealth incurred medical expenses
resulting from an accident suffered by N.G. MSP alleges that N.G. was injured in an
accident, and sustained injuries that required medical services as a direct and proximate
result thereof. FAC at ¶ 48. In support of these allegations, MSP attached a spreadsheet
as an exhibit to the FAC, which allegedly lists the diagnosis codes and injuries in
connection with the accident-related treatment for N.G. See id. at ¶ 50; see also FAC Ex.
C. �e spreadsheet also includes the dates on which medical services were rendered as
well as the dates on which EmblemHealth allegedly paid for the services. FAC Ex. C. It
appears that the information in this exhibit about N.G. derives from MSP’s data system.

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FAC at ¶¶ 9, 20–24; see also Memorandum of Law in opposition to Motion to Dismiss
FAC (“Opp.”), Doc. 39, at 6, 8.
While the spreadsheet does not contain the name of the patient who received
medical services, it does contain a column for member ID numbers, which could link the
data to N.G. FAC Ex. C. However, the spreadsheet arguably does not conclusively show
that EmblemHealth paid for the services, although it does contain columns for the client
and member ID numbers, which reference EmblemHealth. Id. In addition, although
MSP alleges that EmblemHealth was billed $9,085.15 and paid $2,694.15 in connection
with N.G.’s medical services, there are discrepancies between the amounts alleged in the
FAC and amounts billed and paid as reflected in the spreadsheet. Compare FAC at ¶ 52
and Opp. at 9 with FAC Ex. C (the entries in the amount billed and amount paid columns
equal $9,079 and $2,693.05, respectively).
Courts have previously addressed discrepancies of this nature with MSP’s data
compilation and analytic process in similar cases against different insurers. See, e.g., AIG
Prop. Cas. Co., 2021 WL 1164091, at *5–6, reconsideration denied, 2021 WL 3371621;
New York Cent. Mut. Fire Ins. Co., 2019 WL 4222654, at *5 (finding that “nothing on the
actual exhibit confirms its source”).
Notwithstanding these discrepancies, the Court finds that MSP has adequately
alleged that EmblemHealth paid for medical services provided to N.G. AIG Prop. Cas.
Co., 2021 WL 1164091, at *5–6 (finding that the same plaintiff barely adequately alleged
that MAOs paid for medical care for exemplar patients despite “lack of identifying
information,” “blunders,” and “discrepancies”), reconsideration denied, 2021 WL
3371621.

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Second, MSP must allege that the MAO paid for medical services and was not
reimbursed by Hereford. Id. at *6. MSP contends that the expenses at issue are
reimbursable, as evidenced by Hereford’s reporting the accident to CMS, which
purportedly “demonstrates that [Hereford] was aware of the accident and its
responsibility to reimburse [EmblemHealth].” FAC at ¶¶ 54–55; see also id. at ¶¶ 25, 46
(“[Hereford] reported and admitted its primary payer responsibility for the accidentrelated medical expenses but has nevertheless failed to reimburse Plaintiff or its Assignor
for the conditional payments”); Opp. at 9, 12. As background, MSP alleges that primary
payers like Hereford are legally required to report their primary payer responsibility to
CMS, and that this reporting constitutes an “admission that it should have paid for [the]
accident-related injuries in the first instance.” FAC at ¶¶ 5–6, 55; see also Opp. at 5, 21–
22.
However, as Hereford argues, MSP’s “false presumption” that an insurer’s
statutorily required notice to CMS that a Medicare beneficiary made a no-fault claim
constitutes an “admission” of primary payer status and liability is a mischaracterization.
Mot. at 1, 7, 9, 13, 14, 16; see also Reply Memorandum of Law in support of Motion to
Dismiss FAC, Doc. 41, at 1–2. “Plaintiff’s underlying premise — if a claim is reported to
CMS, then any medical expense that may be associated with the claim is reimbursable by
the entity that reported the claim — is factually inaccurate.” AIG Prop. Cas. Co., 2021
WL 1164091, at *6, reconsideration denied, 2021 WL 3371621. “Anytime an insurance
company becomes aware that a Medicare beneficiary was injured in an accident for
which it (or a direct subsidiary) wrote a policy that may provide coverage, the insurance
company is obligated to report it to CMS.” Id. “Insurance companies are required to

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submit such claim information ‘regardless of whether or not there is a determination or
admission of liability.’” Id. (quoting 42 U.S.C. § 1395y(b)(8)(C)); see also Mot. at 7
(“�e notice is required under 42 U.S.C. § 1395y(b)(8) whether or not the no-fault claim
is resolved (determined valid or invalid) and cannot be deemed an admission.”), 14–15.
Furthermore, Hereford presents a hypothetical scenario in which multiple insurers would
be statutorily required to report the same claim to CMS, but the medical services and
items associated with the claim would not be reimbursable by each and every insurer as a
primary payer. 5 See Mot. at 15. Although MSP argues that the statutory text and
Eleventh Circuit case law support its contention that reporting to CMS is an admission of
primary payer responsibility,6 Opp. at 20–22, “the Court needs to know whether CMS
data plausibly suggests that reported claims generate medical expenses that are
reimbursable to the MAOs by the reporting entity.” 7 AIG Prop. Cas. Co., 2021 WL
Hereford argues that the mischaracterization of the 42 U.S.C. § 1395y(b)(8) notification requirement as an
admission is further highlighted by the fact that the A.B. exemplar claim is not covered by Hereford’s
insurance policy despite Hereford’s notification to CMS regarding a potential claim. Memorandum of Law
in support of Motion to Dismiss FAC (“Mot.”), Doc. 36, at 9–10. MSP does not respond to this allegation,
but gives notice that it will not proceed with its A.B. claim. Opp. at 8 n.4; see also Reply Memorandum of
Law in support of Motion to Dismiss FAC, Doc. 41, at 1, 2–3.
5

In the district court’s opinion denying MSP’s motion for reconsideration in MSP Recovery Claims, Series
LLC v. AIG Prop. Cas. Co., the court did not consider the plaintiff’s statutory and regulatory arguments in
support of its position regarding the significance of CMS reporting, but held that the plaintiff’s reliance on
two Eleventh Circuit cases, MSP Recovery Claims, Series LLC v. Ace Am. Ins. Co., 974 F.3d 1305 (11th
Cir. 2020) and MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 950 F.3d 764 (11th Cir. 2020), to support
its view that reporting to CMS constitutes an admission that the reporting company is responsible as a
primary payer was inapplicable and not persuasive. No. 20 Civ. 2102 (VEC), 2021 WL 3371621, at *3–4
(S.D.N.Y. Aug. 2, 2021). Here, MSP makes substantially similar arguments. See, e.g., Opp. at 4, 5, 20–22.
�e Court finds the reasoning in AIG Prop. Cas. Co. persuasive.
6

As the district court observed in MSP Recovery Claims, Series LLC v. AIG Prop. Cas. Co., where MSP did
not argue that CMS data reflects some claims that are likely reimbursable, but instead argued only that an
insurer’s report to CMS constitutes an admission that it is the primary payer, “the Court has nothing on
which to base a decision that it can draw reasonable inferences from the bare fact that the claim was
reported.” No. 20 Civ. 2102 (VEC), 2021 WL 1164091, at *7 n.13 (S.D.N.Y. Mar. 26, 2021),
reconsideration denied, 2021 WL 3371621. �e parties also dispute the circumstances surrounding and the
implications of Hereford’s handling of the N.G. claim, including Hereford’s payment of other claims
submitted for N.G. See Mot. at 10–12; Affidavit of Samuel Rubin in support of Motion to Dismiss FAC
(“Rubin Affidavit”), Doc. 38, at ¶¶ 13–14, 19; Opp. at 8–13. Nonetheless, MSP repeats its argument,
without factual support as to whether the claims at issue were, in fact, reimbursable, that Hereford was
7

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1164091, at *7 (“Without any information from Plaintiff about what can be discerned
from CMS data, the Court is at a loss whether this information supports Plaintiff’s
premise that the exemplar claims involve costs that should have been reimbursed to the
MAOs.”), reconsideration denied, 2021 WL 3371621.
In summary, MSP has not adequately alleged that there is “more than a sheer
possibility” that its exemplar claim reported to CMS involves an accident where an
insurance company is the primary payer and is therefore required to reimburse the MAO.
Id. (quoting Iqbal, 556 U.S. at 678). �erefore, without factual support for the
proposition that the medical expenses incurred by the patients involved in accidents that
were reported to CMS should have been reimbursed, “Plaintiff is left with nothing more
than speculation that the MAOs at issue lost money.” Id. Accordingly, MSP fails to
adequately plead injury-in-fact, as it has not adequately alleged that EmblemHealth
incurred reimbursable costs in connection with the N.G. claim. Although this finding
alone warrants dismissal of the FAC for lack of standing, the Court further considers
MSP’s standing allegations. See id.
Third, MSP must allege that EmblemHealth assigned the exemplar claim to one of
its Series LLCs. Id. MSP alleges that EmblemHealth assigned its claims related to N.G.
to its Series LLC. FAC at ¶¶ 38, 40. An “assignee of a claim has standing to assert the
injury in fact suffered by the assignor,” Vt. Agency of Nat. Res. v. United States ex rel.
“undoubtedly a primary payer for the items and services paid by [EmblemHealth], where Hereford: had
notice of the accident, admitted and reported to CMS, and made payments for other claims submitted on
behalf of N.G.” Opp. at 9. �e Court notes that while the Rubin Affidavit acknowledges that Hereford
began paying for medical treatment received by N.G. on account of the accident, this payment was related
to a no-fault application for N.G. submitted on November 13, 2014, and “no claim for payment was
submitted to Hereford for medical treatment on October 14 through October 18, 2014.” Rubin Affidavit at
¶¶ 13–14 (noting that the first date of treatment known to Hereford was October 20, 2014); see also Rubin
Affidavit Ex. G, Doc. 38-7 (no-fault application submitted on behalf of N.G. related to medical services
arising from an automobile accident on October 14, 2014).

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Stevens, 529 U.S. 765, 773 (2000), and the assignee “replaces the assignor with respect to
the claim or the portion of the claim assigned, and thus stands in the assignor’s stead with
respect to both injury and remedy.” Connecticut v. Physicians Health Servs. of Conn.,
Inc., 287 F.3d 110, 117 (2d Cir. 2002).
On March 20, 2018, EmblemHealth assigned “all rights to recover conditional
payments made on behalf of its Enrollees” to MSP’s Series 16-08-483 and MSP
Recovery, LLC. FAC Appendix 2 at ¶ 1; see FAC Ex. E, Doc. 26-5, at 2 (“Assignor
hereby irrevocably assigns . . . to Assignee . . . any and all of Assignor’s right, title,
ownership and interest in and to all Assigned Medicare Recovery Claims . . . .”) 8. On
April 4, MSP Recovery, LLC assigned “the rights it had acquired in the [assignment from
EmblemHealth] to Series 16-08-483.” FAC Appendix 2 at ¶ 7; see FAC Ex. F, Doc. 26-6,
at 1. On September 25, EmblemHealth expressly ratified and approved this assignment.
FAC Appendix 2 at ¶ 7 n.20; see FAC Ex. G, Doc. 26-7.
MSP alleges that it “holds assigned rights to reimbursement, including those
recoverable pursuant to the [Act], through assignments” from MAOs. Opp. at 3; see FAC
at ¶¶ 40, 66, 68. MSP further alleges that the claims identified in Exhibit A as well as the
N.G. claim (1) derived from Medicare Health Care Services that were rendered and paid
for by EmblemHealth during the six-year period beginning September 29, 2011 and
ending September 29, 2017, (2) had not been assigned to and were not being pursued by

�e “Assigned Medicare Recovery Claims” include EmblemHealth’s rights to seek reimbursement from
primary payers responsible to EmblemHealth “for Health Care Services provided to [EmblemHealth’s]
Medicare [ ] enrollees arising under state and/or federal laws . . . that provide for the reimbursement of
payments made by [EmblemHealth] . . . pursuant to a Medicare Advantage Plan.” FAC Appendix 2 at ¶¶
2–3; see FAC Ex. E, Doc. 26-5, at 1, § 2(a) (defining excluded claims as “Assignor Retained Claims”). �e
“Assigned Medicare Recovery Claims” relate to “Medicare Health Care Services” that were rendered and
paid for by EmblemHealth during the six-year period beginning September 29, 2011 and ending September
29, 2017. FAC Ex. E at 1.
8

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other recovery vendors as of March 20, 2018, and (3) are not claims that can be asserted
against EmblemHealth’s members, enrollees and/or contracted providers. FAC Appendix
2 at ¶ 4; see FAC Ex. E at 1, § 2(a).
MSP provides data purporting to show that medical services were provided to
N.G. between October 14 and October 18, 2014, and that the associated expenses were
paid by EmblemHealth between October 24 and November 21, 2014. FAC Ex. C; see
also FAC at ¶ 51; Opp. at 9. �erefore, these medical services were rendered to N.G. and
paid for by EmblemHealth during the period covered by the assignment agreement. See
FAC Ex. E at 1.
MSP alleges that the exemplar claims, including the N.G. claim, “are not subject
to any carveouts, exclusions, or any other limitations in law or equity that would impair
Plaintiff’s right to bring this cause of action.” FAC at ¶ 40; see FAC Ex. E at 1. In
support of this allegation, MSP asserts that it “reviewed all carve-out lists provided by
[EmblemHealth] with their claims data,” and confirmed that the Exhibit A claims, as well
as the N.G. claim, were “not included on [EmblemHealth’s] carve-out lists and [were] not
Assignor Retained Claims.” FAC Appendix 2 at ¶ 6 (emphases in original). Given that
the Court must draw reasonable inferences in MSP’s favor, the Court finds that the N.G.
claim was not excluded from the assignment agreement. See AIG Prop. Cas. Co., 2021
WL 1164091, at *9 (concluding that exemplar claims were not excluded from
assignments where the same plaintiff’s data analyst reviewed carve-out lists),
reconsideration denied, 2021 WL 3371621.
Fourth, MSP must allege that it has the right to sue on behalf of its Series LLC to
which the N.G. claim was assigned. Id. at *10. MSP alleges that it “maintains the legal

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right to sue on behalf of each of its designated series LLCs,” as “all rights arising from
the assignment to its series, along with the right to bring any lawsuit in connection with
said assignment, belong to Plaintiff.” FAC at ¶ 38 (citing FAC Ex. B at 1).
In AIG Prop. Cas. Co., an action initiated by MSP against other insurance
companies involving similar claims, the court assessed the parties’ arguments as to
whether MSP’s own LLC agreement could authorize it to sue on behalf of its designated
Series LLCs pursuant to Delaware law. 2021 WL 1164091, at *10–11, reconsideration
denied, 2021 WL 3371621. While the court had “grave doubts” about the merits of
MSP’s argument, it declined to make any findings on the matter in light of MSP’s failure
to allege standing for other distinct reasons and the split of federal court authority over
the Delaware law issue. Id. at *11. While the parties do not raise this issue here, the
Court adopts the court’s approach in AIG Prop. Cas. Co., and for the purposes of this
motion only, similarly assumes that MSP has the right to sue on behalf of its designated
Series LLC. Id.
ii.

MSP Has Not Adequately Pled Causation

In order to establish Article III standing, an alleged injury must be “fairly
traceable” to the defendant. Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013).
�erefore, MSP must allege facts adequate to show that the alleged injury resulted from
the actions of the defendant and “not . . . from the independent action of some third
party.” See MGM Resorts Int’l Glob. Gaming Dev., LLC v. Malloy, 861 F.3d 40, 44 (2d
Cir. 2017) (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, Fla., 508 U.S. 656, 663 (1993)), as amended (Aug. 2, 2017). MSP has
failed to adequately plead causation.

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First, MSP has adequately pled that EmblemHealth’s injury is traceable to
Hereford. AIG Prop. Cas. Co., 2021 WL 1164091, at *11, reconsideration denied, 2021
WL 3371621. MSP alleges that N.G.’s medical costs were covered by a no-fault
insurance policy issued by Hereford. FAC at ¶ 49. Hereford does not challenge this
allegation. In fact, Hereford paid for certain of N.G.’s medical treatments, and was
“responsible for paying medical bills incurred by [N.G.].” Affidavit of Samuel Rubin in
support of Motion to Dismiss FAC (“Rubin Affidavit”), Doc. 38, at ¶¶ 13–14, 19; see also
Mot. at 10–11. �erefore, the Court finds that MSP has adequately pled that Hereford
issued the insurance policy at issue in the N.G. claim.
Second, MSP has not adequately alleged that the medical services provided to
N.G. were for injuries that would have been covered by the insurance policy issued by
Hereford. AIG Prop. Cas. Co., 2021 WL 1164091, at *12, reconsideration denied, 2021
WL 3371621. N.G. was injured in an accident on October 14, 2014, and as a result
thereof, required medical services. FAC at ¶ 48. Hereford acknowledges that N.G. was
in an accident on October 14, 2014, and that it made payments for medical treatment
received by N.G. on account of the accident. Rubin Affidavit at ¶ 13; see also Rubin
Affidavit Ex. G, Doc. 38-7 (no-fault application submitted on behalf of N.G. related to
medical services arising from an automobile accident on October 14, 2014). However,
Hereford argues that the payments it made were related to the medical services rendered
in connection with the accident, with the first date of treatment on October 20, 2014.
Rubin Affidavit at ¶¶ 13–14. 9 Hereford further contends that “no claim for payment was

�e no-fault application submitted to Hereford on behalf of N.G. notes that N.G. was involved in an
“automobile accident.” Rubin Affidavit Ex. G at 2.
9

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submitted to Hereford for medical treatment on October 14 through October 18, 2014,”
which is the treatment at issue. Id. at ¶ 14; see also Rubin Affidavit Ex. G. Moreover,
MSP has not adequately alleged that the medical services at issue were related to or
necessitated by the same accident.
In support of its allegations, MSP attaches as Exhibit C to the FAC “[a] list of
N.G.’s diagnosis codes and injuries in connection with N.G.’s accident-related
treatment.” FAC at ¶ 50; see also FAC Ex. C. However, MSP does not make allegations
regarding, for example, the nature and details of the accident that allegedly required
medical services or the nature and details of medical care provided. 10 “Without at least
some allegations about the nature of the accident[ ], there is nothing beyond Plaintiff’s
ipse dixit and the fact that the medical care was provided on the date of or subsequent to
the date of the accident that links the alleged insurance policies . . . to the medical items
and services provided.” AIG Prop. Cas. Co., 2021 WL 1164091, at *12 (noting “the
fallacy of relying only on chronology to assert that an automobile insurance company is a
primary payer” and finding that the same plaintiff had not adequately pled causation
where it presented similar allegations and exhibits, id. at *12–13), reconsideration
denied, 2021 WL 3371621.
Furthermore, the exhibit listing N.G.’s diagnosis codes and injuries in connection
with the accident-related treatment fails to remedy and further illustrates the inadequacy
of MSP’s pleading. Based on Exhibit C, it appears that N.G. was taken to the hospital in

In the FAC, although MSP refers to Hereford’s alleged failure to pay for or reimburse medical expenses
resulting from injuries sustained in automobile and other accidents, it merely alleges that N.G. was injured
in “an accident.” FAC at ¶¶ 1–2, 48–51, 53–55. In its opposition, MSP notes that members of assignorMAOs, including EmblemHealth, were “insured under no-fault automobile insurance policies issued by
Hereford” and “involved in car accidents requiring medical services.” Opp. at 3.
10

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an ambulance; 11 N.G. underwent radiologic examinations of the knee 12 and pelvis 13 and a
computed tomography (CT) scan of the pelvis 14; and an electrocardiogram was
performed. 15 FAC Ex. C. However, neither the FAC nor its exhibits allege facts from
which the Court can reasonably infer that these medical services were necessary because
of the accident. 16 AIG Prop. Cas. Co., 2021 WL 1164091, at *13, reconsideration
denied, 2021 WL 3371621. Accordingly, this calls into question the connection between
the accident and the medical services provided to N.G. �erefore, MSP has not
adequately alleged that Hereford caused EmblemHealth harm as to the N.G. claim.
In summary, MSP has failed to adequately allege that EmblemHealth suffered an
injury by incurring costs with respect to the N.G. claim that Hereford was required to
reimburse as the primary payer. Accordingly, the Court finds that MSP has not
adequately alleged standing over the N.G. claim, and the claim is hereby dismissed.

See FAC Ex. C (N.G.’s diagnosis codes and injuries in connection with N.G.’s accident), Doc. 26-3,
entries on October 14, 2014, process code A0429. Code A0429 is the code for ambulance service, basic
life support, and emergency transport. See A0429,
https://www.findacode.com/code.php?set=HCPCS&c=A0429 (last visited Dec. 29, 2021).
11

See FAC Ex. C, entries on October 14, 2014, process code 73562. Code 73562 is the code for a
radiologic examination of the knee. See 73562, https://www.findacode.com/code.php?set=CPT&c=73562
(last visited Dec. 29, 2021).
12

See FAC Ex. C, entries on October 14, 2014, process code 72170. Code 72170 is the code for a
radiologic examination of the pelvis. See 72170, https://www.findacode.com/code.php?set=CPT&c=72170
(last visited Dec. 29, 2021).
13

See FAC Ex. C, entries on October 18, 2014, process code 72192. Code 72192 is the code for a
computed tomography of the pelvis. See 72192, https://www.findacode.com/code.php?set=CPT&c=72192
(last visited Dec. 29, 2021).
14

See FAC Ex. C, entries on October 14, 2014, process code 93227. Code 93227 is the code for an
electrocardiogram. See 93227, https://www.findacode.com/code.php?set=CPT&c=93227 (last visited Dec.
29, 2021).
15

Although MSP argues that Hereford was “undoubtedly a primary payer for the items and services paid by
[EmblemHealth], where Hereford . . . made payments for other claims submitted on behalf of N.G.” related
to an automobile accident on October 14, 2014, this allegation does not address whether the medical
services at issue were also related to the same accident. Opp. at 9; see also id. at 12; Rubin Affidavit Ex. G;
Mot. at 15–16.
16

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C.

MSP’s Article III Standing Over Its Exhibit A Claims

In addition to the N.G. claim, MSP alleges that it has standing to sue for the 63
claims listed in Exhibit A. FAC at ¶ 36; see also FAC Appendix 2 at ¶ 5. Exhibit A is a
list of Medicare beneficiaries for whom EmblemHealth allegedly “made conditional
payments for accident-related treatments subject to overlapping primary coverage from
[Hereford], which payments have not been reimbursed,” and for whom Hereford filed
reports with CMS. FAC at ¶ 25; see also Opp. at 5, 12 (noting that the claims in Exhibit
A “are based on [Hereford’s] reporting to CMS”). �e allegations concerning the claims
in Exhibit A are “even more conclusory than the allegations about the [ ] exemplar
claims.” AIG Prop. Cas. Co., 2021 WL 1164091, at *14, reconsideration denied, 2021
WL 3371621. Exhibit A includes the name of the MAO that allegedly provided payment
for services and was not reimbursed, the contract and plan number, the plan name, the
address, and the insurance type. See FAC Ex. A. However, Exhibit A does not contain
any information connecting any patient to a particular accident on a particular day, nor
are there any factual allegations regarding the alleged accidents or the related injuries and
medical services. �erefore, the Court finds that MSP has not adequately alleged that it
has standing to assert the claims listed in Exhibit A, and the claims are hereby dismissed.
See AIG Prop. Cas. Co., 2021 WL 1164091, at *14 (finding similarly limited information
insufficient to allege standing for MSP’s Exhibit A claims), reconsideration denied, 2021
WL 3371621.
D.

MSP’s Article III Standing Over Its Class-wide Claims

MSP alleges that it has standing to sue on a class-wide basis “on behalf of all
Class Members or their assignees who paid for their beneficiaries’ accident-related

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medical expenses, when [Hereford] should have made those payments as primary payer.”
FAC at ¶ 69; see also id. at ¶¶ 12, 27, 69–77. However, aside from its conclusory
allegations regarding the class members, MSP has provided no information about the
class-wide claims. AIG Prop. Cas. Co., 2021 WL 1164091, at *14 (dismissing the same
plaintiff’s universe of claims in a class action where plaintiff similarly provided no
information about the claims), reconsideration denied, 2021 WL 3371621. �erefore, the
Court finds that MSP has not adequately alleged that it has standing over the class-wide
claims, and the claims are hereby dismissed.
E.

Leave to Amend the FAC

�e Court declines to grant MSP leave to amend the Complaint again. MSP has
already amended the Complaint once with Hereford’s consent pursuant to Rule 15(a)(2).
See Doc. 27; see also Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)
(noting that leave to amend may be properly denied for “repeated failure to cure
deficiencies”). As other courts have recognized, MSP has brought a number of these
cases across the country, and, as a result, was “on notice from the outset that the issue of
standing would be front and center.” MAO-MSO Recovery II, LLC v. State Farm Mut.
Auto. Ins. Co., No. 17 Civ. 1537 (JBM), 2019 WL 6311987, at *9 (C.D. Ill. Nov. 25,
2019), aff’d, 994 F.3d 869 (7th Cir. 2021); see, e.g., AIG Prop. Cas. Co., 2021 WL
1164091, at *15 (“But this is far from Plaintiff’s first rodeo. Plaintiff has brought many
of these cases around the country . . . .”), reconsideration denied, 2021 WL 3371621;
Tech. Ins. Co., Inc., 2020 WL 91540, at *4 (“�e Court is well aware that this action is
one of many similar actions filed by Plaintiffs across the country. �is Court’s decision to
dismiss the complaint for lack of standing is similarly not singular, as it joins a growing

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contingent of courts that have dismissed complaints brought by Plaintiffs due to various
standing defects.”); New York Cent. Mut. Fire Ins. Co., 2019 WL 4222654, at *6 (“�is
case is one of dozens of putative class action suits filed in federal courts across the United
States by MSP Recovery Claims, Series LLC or its affiliates. . . . In each of these cases,
Plaintiffs file deficient complaints, rely on courts to point out the problems, and then
repeatedly amend their pleadings until they get it right.”).
�erefore, the Court declines to grant MSP leave to amend the Complaint again.
See, e.g., AIG Prop. Cas. Co., 2021 WL 1164091, at *15 (“Because Plaintiff has had
plenty of trial runs and has already amended its complaint against these Defendants once,
the Court declines to grant leave to amend again as it would be futile.”), reconsideration
denied, 2021 WL 3371621.
F.

Dismissal Without Prejudice

However, because the Court dismisses the action for lack of standing, dismissal
must be without prejudice. John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d
Cir. 2017) (“[W]here a complaint is dismissed for lack of Article III standing, the
dismissal must be without prejudice, rather than with prejudice.” (citation omitted)).
Without jurisdiction, the Court “lacks the power to adjudicate the merits of the case.”
Carter, 822 F.3d at 54–55. Accordingly, the FAC is dismissed without prejudice.
IV.

CONCLUSION
For the reasons set forth above, MSP lacks Article III standing. Accordingly,

Hereford’s motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is
GRANTED.

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�e Clerk of the Court is respectfully directed to terminate the motion, Doc. 37,
and close the case.
It is SO ORDERED.
Dated:

January 11, 2022
New York, New York
EDGARDO RAMOS, U.S.D.J.

27