Bruce v. Anthem Insurance Companies Inc

Filing 21

MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 MOTION to Compel Defendants to File Amended Answer filed by Heidi Bruce. Plaintiff's motion to compel defendants to file amended answer is granted in part and denied in part, and defendants are ordered to file an amended answer within 21 days of the date this memorandum opinion and order is filed. (Ordered by Judge Sidney A Fitzwater on 4/23/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HEIDI BRUCE,

§
§
Plaintiff,
§
§ Civil Action No. 3:15-CV-0353-D
VS.
§
§
ANTHEM INSURANCE COMPANIES, §
INC., d/b/a ANTHEM BLUE CROSS
§
AND BLUE SHIELD, et al.,
§
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
Plaintiff Heidi Bruce (“Bruce”) moves to compel defendants to file an amended
answer. For the reasons that follow, the court grants the motion in part and denies it in part,
and orders defendants to file an amended answer within 21 days of the date this
memorandum opinion and order is filed.1
I
Bruce sues defendants Anthem Insurance Companies, Inc., d/b/a Anthem Blue Cross
and Blue Shield, and Verizon Employee Benefits Committee to recover medical benefits
under an ERISA2 plan for surgery performed on her herniated cervical disc. After defendants

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]
issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.
2

Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461.

filed their answer, Bruce filed the instant motion to compel, complaining that the answer
does not comply with Fed. R. Civ. P. 8(b)(1), (b)(2), (b)(4), and (c). Defendants oppose the
motion.
II
As a threshold matter, the court turns to defendants’ response, in which they contend
that Bruce’s motion to compel should be denied on the ground that it is procedurally
improper. Defendants maintain that, in the absence of a proper procedural vehicle for
challenging their answer, Bruce has “instead crafted one from whole cloth.” Ds. Resp. 1.
The court disagrees.
When an answer does not comply with Rule 8(b), a plaintiff may move to require the
defendant to replead. See, e.g., Rodriguez v. Prof’l Servs. Assistance, Inc., 2007 WL 667166,
at *1 (W.D. Tex. Feb. 16, 2007) (granting alternative motion to require defendants to replead
their answer in accordance with the Rules). Moreover, defendants may wish to reconsider
their procedural objection given the alternative remedies available under the rules. One
remedy is to treat the averments of Bruce’s complaint as admitted. See, e.g., 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1261, at 528 (2004) (“If an
answer is not sufficiently definite in nature to give reasonable notice of the allegations in the
complaint sought to be placed in issue, the opponent’s averments may be treated as
admitted.”). Another remedy is to strike a defense that is inadequately pleaded. See, e.g.,
Klein v. Fed. Ins. Co., 2014 WL 4476556, at *4-5 (N.D. Tex. Sept. 11, 2014) (Fitzwater,
C.J.) (addressing motion to strike under Rule 12(f) standard). The relief that Bruce seeks
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actually enables defendants to cure their pleading defects without suffering the consequences
of having the averments of Bruce’s complaint deemed admitted, or their defenses stricken.
See Wright & Miller, supra § 1261, at 530 (“[T]he liberal amendment policy of Rule 15
provides a safety valve that permits the district court to allow deviations from poorly framed
denials when it seems appropriate to do so.”).
III
Rule 8(b)(1) provides that, “[i]n responding to a pleading, a party must: (A) state in
short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the
allegations asserted against it by an opposing party.” Under Rule 8(b)(2), “[a] denial must
fairly respond to the substance of the allegation.” And Rule 8(b)(4) requires that “[a] party
that intends in good faith to deny only part of an allegation must admit the part that is true
and deny the rest.”
As has been noted in many judicial opinions, the theory of Rules
8(b) and 8(d) is that a defendant’s pleading should apprise the
opponent of those allegations in the complaint that stand
admitted and will not be in issue at trial and those that are
contested and will require proof to be established to enable the
plaintiff to prevail.
Wright & Miller, supra § 1261 at 526.
Although defendants’ answer is adequate in some respects, it is deficient under Rule
8(b) in others.3 For example, in several paragraphs, defendants answer that a document

3

This lawsuit was filed on February 4, 2015. It has not yet been on file 90 days. The
court’s taking the time to write a detailed opinion identifying each defect in defendants’
answer would neither be a wise use of the court’s resources nor a valid reason for delaying
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“speaks for itself.” E.g., Answer ¶ 4 (“Defendants admit only that the referenced plan is a
document that speaks for itself. Otherwise, denied.”). This approach to pleading has been
rejected. See Azza Int’l Corp. v. Gas Research Inst., 204 F.R.D. 109, 110 (N.D. Ill. 2001)
(referring to “impermissible statement that a document ‘speaks for itself’”); see also Lane
v. Page, 272 F.R.D. 581, 602-03 (D.N.M. 2011) (stating that “[r]esponses that documents
speak for themselves and that allegations are legal conclusions do not comply with rule
8(b)’s requirements.” (collecting cases)).
And in several paragraphs, defendants plead that a particular part of Bruce’s complaint
“consists of legal conclusions to which no response is required.” E.g., Answer ¶ 1. Some
of defendants’ assertions, quite frankly, border on the frivolous. For example, in ¶ 1 of
Bruce’s complaint, she alleges that “Defendant Anthem Insurance Companies, Inc., d/b/a
Anthem Blue Cross and Blue Shield [hereinafter ‘Anthem’], may be served with citation by
serving its registered agent: CT Corporation System, 1999 Bryan Street, Suite 900, Dallas,
Texas 75201.” Compl. ¶ 1 (bracketed material in original). Defendants respond in their
answer that “Paragraph 1 of Plaintiff’s Complaint consists of legal conclusions to which no
response is required.” Answer ¶ 1. This assertion is baseless. And even if ¶ 1 of the
complaint did contain legal conclusions, it is “insufficient” under Rule 8(b) to deny an

the progress of this litigation. The court will therefore highlight certain examples of how the
answer is defective, with the expectation that defendants will carefully review their amended
answer for compliance with all the provisions of Rule 8(b) before filing it.
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allegation on the basis that it is a “legal conclusion.” See Lane, 272 F.R.D. at 602.4
Finally, in some instances, the answer does not fairly respond to the substance of the
allegations in the complaint. For example, in ¶ 3, Bruce alleges: “Bruce suffered from a
herniated cervical disc at level C6-7. Surgery was performed on November 5, 2013,
involving a total disc replacement at C6-7 with a Mobi-C prosthetic device. Bruce incurred
charges of $64,919.98 for such surgery. Bruce is entitled to receive medical benefits for such
surgery.” Compl. ¶ 3. Defendants answer: “Defendants admit only that the administrative
record in this case speaks for itself. Otherwise, denied.” Answer ¶ 3. This type of pleading
is insufficient.
To be clear, in amending their answer, defendants are only obligated to give
reasonable notice of the allegations that they seek to put in issue:
Rule 8(b) also must be read in conjunction with Rule 8(e),
which makes it clear that in framing an answer a party need not
adhere to any technical forms of pleading. As long as the
answer gives reasonable notice of those allegations sought to be
put in issue, the pleading will be effective as a denial.
Wright & Miller, supra § 1261, at 532 (footnotes omitted). But as the Azza International
court stated: “this Court expects that defendants’ Amended Answer will be far more
meticulous in specifying exactly which allegations of the [complaint] are and which are not
being put into issue, thus avoiding needless time and effort on Azza’s part in having to prove

4

Defendants are not alone, however, in deserving the court’s criticism for their
pleadings. Bruce’s complaint contains argumentative allegations that serve no apparent
function. See, e.g., Compl. ¶ 55 (alleging that “[t]he report thus follows Alice into
Wonderland.”).
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undisputed matters.” Azza Int’l, 204 F.R.D. at 110.
IV
Bruce challenges defendants’ affirmative defenses 7, 8, 12, 13, and 14, contending
that they are prime examples of “boilerplate” and “formula-like” pleading and do not give
her fair notice of the defenses. P. Mot. 4. The challenged affirmative defenses are:
7.

Plaintiff’s claims are barred, in whole or in part, because
Plaintiff’s previous disk replacement was completed with
a non-FDA approved device and was investigational.

8.

Plaintiff’s claims are barred, in whole or in part, because
the efficacy of the device could not be established within
the medical literature.

12.

Plaintiff’s claims are barred, in whole or in part, due to
Plaintiff’s own fault.

13.

Plaintiff’s claims are barred, in whole or in part, by a
disclaimer provided.

14.

Plaintiff’s claims are barred, in whole or in part, due to
waiver and/or estoppel.

Answer (Affirmative Defenses) ¶¶ 7, 8, 12, 13, and 14.
Rule 8(c) provides that, “[i]n responding to a pleading, a party must affirmatively state
any avoidance or affirmative defense, including [18 listed affirmative defenses].” This court
has explained that it
applies the “fair notice” pleading standard for affirmative
defenses set forth in Woodfield v. Bowman, 193 F.3d 354, 362
(5th Cir. 1999). Accordingly, to adequately plead an affirmative
defense, there must be enough factual particularity to give the
plaintiff fair notice of the nature of the affirmative defense and
prevent unfair surprise. Although in some instances merely
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pleading the name of the affirmative defense may be sufficient,
a fact-specific inquiry is required to determine whether the
pleadings set forth the minimum particulars needed to ensure the
plaintiff is not the victim of unfair surprise.
Klein, 2014 WL 4476556, at *5 (some citations, ellipsis, and some internal quotation marks
omitted).
The court concludes that affirmative defense 7 gives Bruce fair notice, but that
affirmative defenses 8, 12, 13, and 14 do not. See id. at *6-8 (addressing affirmative
defenses that did and did not give fair notice, and explaining reasoning). The court therefore
grants in part and denies in part Bruce’s motion to the extent addressed to these affirmative
defenses.
*

*

*

Accordingly, Bruce’s March 18, 2015 motion to compel defendants to file amended
answer is granted in part and denied in part, and defendants are ordered to file an amended
answer within 21 days of the date this memorandum opinion and order is filed.
SO ORDERED.
April 23, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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