Mosser v. AETNA Life Insurance Company et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 34 Report and Recommendations, 9 Motion to Dismiss, filed by eHealthInsurance Services Inc. Defendant eHealthInsurance Services, Inc.s Motion to Dismiss (Dkt. #9) is DENIED. Signed by Judge Amos L. Mazzant, III on 1/12/16. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

NICHOLAS D. MOSSER
v.
AETNA LIFE INSURANCE COMPANY
and EHEALTHINSURANCE SERVICES,
INC.

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CASE NO. 4:15-CV-430
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On November 25, 2015, the report of the Magistrate Judge (Dkt. #34) was entered containing
proposed findings of fact and recommendations that Defendant eHealthInsurance Services, Inc.’s
(“eHealth”) Motion to Dismiss (Dkt. #9) be denied. Having received the report of the Magistrate
Judge (Dkt. #34), having considered each of eHealth’s timely filed objections (Dkt. #41) and
Plaintiff’s Response to such objections (Dkt. #45), and having conducted a de novo review, the
Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and
the Court hereby adopts the Magistrate Judge’s report (Dkt. #34) as the findings and conclusions
of the Court.
BACKGROUND
The Magistrate Judge previously set forth the procedural and factual history of this
litigation, and such facts need not be restated fully herein (see Dkt. #34).

On or about

January 1, 2015, Plaintiff purchased a policy advertised and sold by and through eHealth and
Aetna Life Insurance Company (“Aetna,” and collectively with eHealth “Defendants”), entitled

“TX Aetna Gold $5 Copay PD” (the “Gold Policy”) (Dkt. #8). Plaintiff contends that the Gold
Policy represented the following limits regarding prescription drugs:
Generic Drugs: $10 Copay; Preferred Brand Drugs: $35 Copay after deductible;
Non-preferred Brand Drugs: $70 Copay after deductible; Specialty Drugs: 30%
Coinsurance after deductible; Off Label Prescription Drugs: $70 Copay after
deductible.
Id. Plaintiff argues that, based on the foregoing representations, Plaintiff purchased the Gold
Policy expecting “for any brand name drug, the maximum co-pay would be $70.00.” Id. at 7.
Indeed, Plaintiff argues that he relied on such representations during the sales process and chose
the Gold Policy for this specific reason. Id. Thereafter, Plaintiff experienced difficulty obtaining
insurance coverage for his prescription drugs (specifically, Ambien CR, Strattera, and
Cymbalta), and was charged approximately $400.00 for a thirty-day supply of one medication,
including a penalty for utilizing a brand name drug rather than a generic. Id. at 10. Plaintiff
notes that a copy of the complete insurance policy was not sent, delivered, or made available to
him until April 15, 2015. Id. at 14.
On July 30, 2015, Plaintiff filed his Amended Complaint, asserting claims against
eHealth for violations of the Texas Deceptive Trade Practices Act (“TDTPA”).

Id.

On

August 19, 2015, eHealth filed its Motion to Dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) (Dkt. #9). Plaintiff filed a Response on September 23, 2015
(Dkt. #16); and on October 9, 2015, eHealth filed a Reply (Dkt. #22). The Magistrate Judge
entered a report and recommendation on November 25, 2015, recommending that Defendant’s
motion be denied because Plaintiff’s allegations were sufficient to withstand scrutiny under
Federal Rule of Civil Procedure 12(b)(6) (Dkt. #34). On December 10, 2015, eHealth filed its
objections to the report and recommendation of the Magistrate Judge (Dkt. #41).
On December 28, 2015, Plaintiff filed his response to eHealth’s objections (Dkt. #45). 
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ANALYSIS
eHealth objects to the report and recommendation of the Magistrate Judge on two
grounds: (1) the Magistrate Judge erred when it declined to consider the evidence attached to
eHealth’s motion; and (2) the Magistrate Judge erred when it found that Plaintiff pled facts
sufficient to state a plausible claim (Dkt. #41). In response, Plaintiff argues that the Magistrate
Judge did not err when it determined that the exhibits attached to eHealth’s motion were more
properly considered at summary judgment (Dkt. #45 at 2-3). Plaintiff also asserts that eHealth’s
second objection – that the Magistrate Judge erred in finding Plaintiff’s Complaint states a
plausible claim – is baseless. Id. at 4. Plaintiff contends that the Court must consider Plaintiff’s
allegations made in the Complaint, not make assumptions based on “what Defendants contend
should have taken place or the Plaintiff could have done.” Id. The Court considers each of
eHealth’s objections and Plaintiff’s responses herein.
I.

Evidence Attached to Motion to Dismiss

Turning to eHealth’s first objection, eHealth argues that it is proper and appropriate to
consider documents outside of the Complaint when ruling on a motion to dismiss without
converting the motion into one for summary judgment, as long as those documents are referred
to in the Complaint and are central to Plaintiff’s claims (Dkt. #41 at 7). eHealth argues that
because its documents meet both of these criteria, the Magistrate Judge should have considered
the documents in its ruling on eHealth’s Rule 12(b)(6) motion. Id. In support of its motion to
dismiss, eHealth attached: (a) a complete copy of the eHealth website page applicable to the
Aetna Policy, Marked as Exhibits 2; (b) an affidavit of an eHealth employee verifying the
accuracy of the content of that Exhibit 2, marked as Exhibit 1; and (c) a copy of the Aetna Plan
Brochure included on the eHealth website, marked as Exhibit 3. Id. In Plaintiff’s response,

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Plaintiff contends that the Magistrate Judge exercised its discretion to consider or decline to
consider such documents, which was not error (Dkt. #45).
The Court agrees that in determining whether to grant a Rule 12(b)(6) motion to dismiss,
a district court may generally not “go outside the complaint,” with one exception. Scanlan v.
Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003); Williamson v. Tucker, 645 F.2d 4047, 41213 (5th Cir. 1981). The Fifth Circuit has held that consideration of documents attached to a
motion to dismiss “is limited to documents that are referred to in the plaintiff’s complaint and are
central to the plaintiff’s claim.” Ace Am. Ins. Co. v. Huntsman Corp., 255 F.R.D. 179 (S.D. Tex.
2008) (citing Scanlan, 343 F.3d at 536). Notably, Rule 12(b) grants courts discretion to accept
and consider those materials in its ruling on the motion, but does not require them to do so. Id.
(citation omitted). In reviewing eHealth’s motion, the Magistrate Judge elected not to consider
eHealth’s documents attached to its motion (Dkt. #35 at 4 n.1). While Plaintiff does refer
generally to eHealth’s website in his Complaint, the entire contents of such website are not
referred to in Plaintiff’s Complaint and are not central to Plaintiff’s claims (Dkt. #8). Moreover,
Plaintiff’s Complaint does not refer to the affidavit of the eHealth employee and/or the Aetna
Plan Brochure included on the eHealth website.

Id.

The decision to not consider these

documents in its ruling on eHealth’s motion was made at the discretion of the Magistrate Judge
and was not error. Johnson v. Wells Fargo Bank, N.A., 999 F. Supp. 2d 919, 926 (N.D. Tex.
2014) (citing Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 196 n.3 (5th Cir.
1988)) (order adopting the conclusions of the Magistrate Judge finding the Court has “complete
discretion” to either accept or exclude the evidence for purposes of the motion to dismiss, but
noting if matters outside the pleadings are not excluded, the motion must be treated as one for
summary judgment). Accordingly, because the Magistrate Judge exercised its discretion to

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exclude such evidence (as not part of the and to consider such evidence in connection with any
summary judgment), and declined to convert eHealth’s motion into one for summary judgment,
Aetna’s first objection is overruled.
Moreover, even if the Court had considered the attached documents, the result would
remain the same at this juncture, because following de novo review, the Court finds Plaintiff’s
allegations are sufficient to state a claim pursuant to Rule 12(b)(6), and agrees that eHealth’s
motion should be denied. 
II.

Plaintiff Stated a Plausible Claim

eHealth next objects to the finding of the Magistrate Judge that Plaintiff pleaded a
plausible claim for eHealth’s violation of the TDTPA (Dkt. #7-8). More specifically, eHealth
argues that had the Magistrate Judge considered all of the documents proffered by eHealth, then
the Magistrate Judge would have concluded that Defendant’s motion should be granted and
Plaintiff’s claims dismissed for failure to state a claim. Id. In his responses, Plaintiff contends
that this objection is baseless (Dkt. #45). The Court has already determined supra that it was
within the discretion of the Magistrate Judge whether to consider eHealth’s attached exhibits.
Further, in ruling on a Rule 12(b)(6) Motion, the Court must accept as true all well-pleaded facts
contained in Plaintiff’s Complaint and view them in the light most favorable to Plaintiff. Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). “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.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). The
Court has conducted a de novo review and agrees that under the Rule 12(b)(6) standard, Plaintiff
has sufficiently stated a plausible claim for relief against eHealth under the TDTPA.

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Accordingly, the Court finds that eHealth’s objection that the Magistrate Judge erred in finding
Plaintiff’s claims arising under the TDTPA plausible, is overruled. 
CONCLUSION
Having received the report of the Magistrate Judge, having considered each of Plaintiff’s
timely filed objections (Dkt. #41), and having conducted a de novo review, this Court is of the
opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the

. Magistrate Judge’s report as the findings and conclusions of the Court.
It is, therefore, ORDERED that Defendant eHealthInsurance Services, Inc.’s Motion to
Dismiss (Dkt. #9) is DENIED.
IT IS SO ORDERED.

SIGNED this 12th day of January, 2016.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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