McKenna v. ZO Skin Health, Inc. et al
Memorandum of Opinion and Order For the reasons set forth herein, Triton's Motion to Dismiss Complaint (ECF No. 39 ) is granted. Judge Benita Y. Pearson on 9/8/2021. (JLG)
Case: 4:20-cv-00783-BYP Doc #: 45 Filed: 09/08/21 1 of 8. PageID #: 437
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ZO SKIN HEALTH, INC., et al.,
CASE NO. 4:20CV0783
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
[Resolving ECF No. 39]
Pending is Defendant Triton Benefits & HR Solutions’ (“Triton”) Motion to Dismiss
Complaint (ECF No. 39) pursuant to Fed. R. Civ. P. 12(b)(6). The Court has been advised,
having reviewed the record, the parties’ briefs, and the applicable law. For the reasons below,
the motion is granted.
Plaintiff Vicki McKenna is sick with cancer. In April 2018, after the termination of her
employment with Defendant PuraCap Pharmaceutical LLC (“PuraCap”), Plaintiff notified Triton,
the benefits plan administrator for PuraCap, that she wished to enroll in PuraCap’s health plan
under Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) continuation
coverage, which would allow her to remain enrolled until November 1, 2019. See Complaint
(ECF No. 1) at PageID #: 4, ¶ 15. On August 15, 2019, Plaintiff started employment with
Defendant ZO Skin Health Inc. (“ZO Skin Health”). She resigned 15 days later. See ECF No. 1
at PageID #: 4, ¶ 16. On September 4, 2019, Plaintiff received notice from Defendant
Infinisource, Inc. dba Infinisource Benefit Services (“Infinisource”) that she was eligible for
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COBRA continuing coverage under ZO Skin Health’s plan. See ECF No. 1 at PageID #: 4, ¶ 17.
Relying on Infinisource’s representations, on or about October 17, 2019, Plaintiff notified Triton
(the “Termination Notice”) that she was terminating the continuing insurance coverage she was
receiving through PuraCap, effective as of August 31, 2019. See ECF No. 1 at PageID #: 5, ¶¶
19, 21. After receiving the Termination Notice, Triton cancelled the COBRA continuing
coverage as requested by Plaintiff. See ECF No. 1 at PageID #: 6, ¶ 23. Plaintiff later learned
that Infinisource misinformed her, and she was not eligible for continuing insurance coverage
under ZO Skin Health’s plan. See ECF No. 1 at PageID #: 6, ¶ 25. On or about October 31,
2019, Plaintiff requested that Triton rescind the termination of her COBRA continuing coverage
through PuraCap’s health plan. Triton advised that Plaintiff could not rescind because the
Termination Notice had already been sent to the insurance provider under the PuraCap plan. See
ECF No. 1 at PageID #: 6-7, ¶¶ 26-27.
In April 2020, Plaintiff filed a Complaint (ECF No. 1) against ZO Skin Health,
Infinisource, Triton, and PuraCap. Plaintiff’s purported claims arise from her voluntary
attempted termination ofHealth and Infinisource. In Count Four, Plaintiff asserts a claim entitled
“COBRA Notice Violation” against Triton. See ECF No. 1 at PageID #: 10. Plaintiff seeks
statutory damages under 29 U.S.C. §§ 1161-1169 (listing COBRA continuation-coverage
amendments) for Triton’s alleged violation. See ECF No. 1 at PageID #: 12. In Count Five,
Plaintiff alleges a claim against Triton for breach of fiduciary duty under the Employee
Retirement Income Security Act of 1974 (“ERISA”). See ECF No. 1 at PageID #: 11. Plaintiff
seeks “an injunction, or other equitable decree, reinstating Plaintiff[‘s] coverage under the
[PuraCap] health plan for the months of September and October 2019.” See ECF No. 1 at
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PageID #: 12. The claims against all Defendants except Triton have been resolved. See ECF
Nos. 26 and 36.
Triton was duly served with summons and the Complaint (ECF No. 1) by certified mail,
see ECF No. 9; but, had failed to plead or otherwise defend. Therefore, on June 25, 2020, the
Clerk entered the default of Triton pursuant to Fed. R. Civ. P. 55(a). See ECF No. 21. On July
31, 2020, the Court entered a Default Judgment as to the Issue of Liability Alone against Triton
and set a default judgment hearing as to the amount of damages, attorney’s fees, and costs. See
ECF No. 24.
Triton filed a Motion to Set Aside Default (ECF No. 30) seven business days after the
Court entered the Default Judgment as to the Issue of Liability Alone. Plaintiff opposed the
motion. See ECF No. 34. On September 14, 2020, the Court vacated and set aside the default
that had been entered against Triton. See Memorandum of Opinion and Order (ECF No. 38).
II. Standard of Review
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take
all well-pleaded allegations in the complaint as true and construe those allegations in a light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A
cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility
in th[e] complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not
required to include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678. A pleading that offers “labels and
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conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid
of “further factual enhancement.” Id. at 557. It must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” Id. at 570. “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.” Iqbal, 556 U.S. at 678. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. at 557 (brackets omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). The Court “need not accept as true a
legal conclusion couched as a factual allegation or an unwarranted factual inference.”
Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and internal
quotation marks omitted).
Plaintiff did not suffer any damages as a result of any alleged unlawful
conduct on the part of Triton.
Plaintiff acknowledges that, despite her voluntary termination of the continuing coverage
with the PuraCap COBRA insurance provider, her insurance coverage was not actually
terminated due to a mistake; and that her insurance claims were paid through November 1, 2019
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during the COBRA coverage period.1 See ECF No. 34 at PageID #: 135; Brief in Opposition
(ECF No. 42) at PageID #: 416. The Complaint (ECF No. 1) does not allege any out-of-pocket
loss or contain an allegation that Plaintiff submitted any claims to the Puracap COBRA insurance
provider that were denied. Plaintiff argues that although her claims for September and October
2019 were paid, the Puracap COBRA insurance provider could potentially seek to recoup those
amounts sometime in the future because her premium was returned. See ECF No. 34 at PageID
#: 135; ECF No. 42 at PageID #: 422.2 Furthermore, the docket does not reflect that the
insurance provider has sought to clawback from McKenna any payments made on claims
submitted on behalf of Plaintiff.
Plaintiff asserts that she suffered other damage beyond merely a loss of coverage.
McKenna alleges that she delayed treatment due to the uncertainty surrounding her insurance
coverage. See ECF No. 1 at PageID #: 2, ¶ 3; ECF No. 42 at PageID #: 419-20 (“as a
consequence of the Defendants’ conduct, she was uninsured for the months of September
through December, 2019, and that as a result, she forewent treatments and consultations for her
life-threatening cancer and was exposed to financial liability for medical care she did receive”).
Plaintiff, however, did not become aware that she may not have continuing insurance coverage
Plaintiff alleges that a prescription claim was denied on or about October 28,
2019, see ECF No. 1 at PageID #: 5, ¶ 22, but that claim was made to the ZO Skin Health
COBRA insurance provider, not the Puracap COBRA insurance provider.
But, Plaintiff did not deposit the check for the refund of the premium. See ECF
No. 39-1 at PageID #: 398.
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until the expiration of the PuraCap COBRA coverage.3 Therefore, she could not have made any
decisions to forego or delay life-extending procedures until the PuraCap continuation coverage
under COBRA had ended. Even if Plaintiff forewent treatments and consultations, she has not
alleged with any specificity how that delay worsened her condition.
Contrary to the allegation in ¶ 23 of the Complaint (ECF No. 1),4 Plaintiff also claims
she was damaged because she did not receive notice of the termination of her Puracap COBRA
coverage. See ECF No. 1 at PageID #: 10, ¶¶ 47, 49; ECF No. 42 at PageID #: 421. Plaintiff
does not, however, describe those damages in either the Complaint (ECF No. 1) or the Brief in
Opposition (ECF No. 42), or explain how an alleged lack of notice caused damage considering
that McKenna herself voluntarily terminated the continuing insurance coverage. Finally, Plaintiff
claims she is entitled to statutory damages because she did not receive a termination notice under
COBRA. ECF No. 42 at PageID #: 415, 421. COBRA does not, however, require that Triton
send a notice after Plaintiff voluntarily terminated her coverage. Triton has a meritorious defense
to Counts Four and Five of the Complaint (ECF No. 1) that Plaintiff has suffered no damages.
The issue of Triton’s potential future liability is not ripe for adjudication.
Triton argues any claims which Plaintiff may have against it under COBRA or ERISA are
not yet ripe as it is uncertain and speculative whether the Puracap COBRA insurance provider
“The [PuraCap COBRA] coverage to which she was entitled was available to
her for 18 months, or through approximately October, 2019.” ECF No. 1 at PageID #: 4,
¶ 15. “On October 31, 2019, Michelle Hawkins informed Plaintiff that she never should
have been offered COBRA benefits from ZO Skin Health in the first place.” ECF No. 1
at PageID #: 6, ¶ 25.
“Also on October 28, 2019, Plaintiff received an email from Carla Salguero of
Defendant Triton confirming termination of Plaintiff’s [PuraCap] COBRA benefits.”
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might deny insurance claims and seek reimbursement in the future. ECF No. 39-1 at PageID #:
403-406. The Court agrees. “Ripeness is a justiciability doctrine designed ‘to prevent the courts,
through premature adjudication, from entangling themselves in abstract disagreements.’ ”
Kentucky Press Ass’n, Inc. v. Kentucky, 454 F.3d 505, 509 (6th Cir.2006) (quoting Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985)). As the Sixth Circuit has
explained, “[t]he ripeness doctrine not only depends on the finding of a case and controversy and
hence jurisdiction under Article III, but it also requires that the court exercise its discretion to
determine if judicial resolution would be desirable under all of the circumstances.” Brown v.
Ferro Corp., 763 F.2d 798, 801 (6th Cir.1985).
“Courts weigh three factors in evaluating a case’s ripeness: (1) ‘the likelihood that the
harm alleged by plaintiffs will ever come to pass;’ (2) ‘whether the factual record of this case is
sufficiently developed to produce a fair and complete hearing as to the prospective claims;’ and
(3) ‘the hardship that refusing to consider plaintiff’s prospective claims would impose upon the
parties.’ ” Rose v. Volvo Const. Equip. N. America, Inc., 412 F. Supp.2d 740, 743 (N.D. Ohio
2005) (quoting United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189,
194-95 (6th Cir.1988)). In undertaking a ripeness analysis, courts “pay particular attention to the
likelihood that the harm alleged by plaintiffs will ever come to pass.” Cyclops, 860 F.2d at 194.
Plaintiff’s fear is that the insurance provider may seek repayment of all or some of the
claims from September and October 2019 at some unknown date in the future. McKenna does
not allege that the insurance provider has informed her that she did not have coverage. Plaintiff
has also not alleged that the insurance provider has given any indication that it intends to seek
repayment of these claims in the future, if at all. Even assuming Plaintiff did not have continuing
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coverage during the period at issue, it is far from clear whether the insurance provider will ever
seek repayment of any paid claims. The Court will dismiss Counts Four and Five as it is not
desirable under all the circumstances to proceed at this time. Brown, 763 F.2d at 801.
Whether Counts Four and Five should be dismissed because Plaintiff has not
alleged cognizable claims for relief under COBRA and ERISA.
Plaintiff argues “[Triton] cannot say that her claims must be dismissed because it
erroneously failed to cancel her coverage, and at the same time assert that it owes no duties to a
beneficiary who has voluntarily discontinued coverage.” ECF No. 42 at PageID #: 415. The
Court does not address whether Plaintiff has alleged cognizable claims for relief under COBRA
and ERISA because it concludes, for the reasons set forth above, that Plaintiff did not suffer any
damages as a result of any alleged unlawful conduct on the part of Triton, and the issue of
Triton’s potential future liability is not ripe for adjudication.
Accordingly, Triton’s Motion to Dismiss Complaint (ECF No. 39) is granted.
IT IS SO ORDERED.
September 8, 2021
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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