Advanced Physicians SC v. Connecticut General Life Insurance Company et al

Filing 87

MEMORANDUM OPINION AND ORDER granting in part and denying in part 84 Motion to Dismiss for Failure to State a Claim (Ordered by Senior Judge A. Joe Fish on 3/27/2018) (ran)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

ADVANCED PHYSICIANS S.C.,
Plaintiff,
VS.
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, ET AL.,
Defendants.

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CIVIL ACTION NO.
3:16-CV-2355-G

MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendants Cigna Health and Life
Insurance Company, Cigna Healthcare Management Inc., Connecticut General Life
Insurance Company, Great-West Healthcare-Cigna, and the NFL Player Insurance
Plan (the “Plan”) to dismiss the claims stated in the plaintiff Advanced Physicians,
S.C. (“AP”)’s latest amended complaint (docket entry 84). For the reasons set forth
below, the defendants’ motion is granted in part and denied in part.
I. BACKGROUND
A full recitation of the factual and procedural background of this case is
provided in the court’s memorandum opinion and order issued on October 27, 2017.
See generally Memorandum Opinion and Order (docket entry 80). In that order, the
court dismissed without prejudice the plaintiff’s first, second, and fourth claims

against the defendants. Id. at 25. However, the court afforded the plaintiff an
opportunity to amend its complaint to cure the deficiencies contained therein. Id.
On November 7, 2017, in compliance with this court’s order, AP filed a new
amended complaint. Plaintiff’s Fourth Amended Complaint (“Fourth Amended
Complaint”) (docket entry 81).
On November 28, 2017, the defendants filed a joint motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants’ Joint Motion to
Dismiss Plaintiff’s Fourth Amended Complaint (“Defendants’ Motion”) at 1. On
December 8, 2017, AP filed a response to the motion. Advanced Physicians, S.C.
Response to Defendants’ Joint Motion to Dismiss Plaintiff’s Fourth Amended
Complaint (“AP’s Response”) (docket entry 85). Shortly thereafter, the defendants
filed a reply. Defendants’ Reply in Support of their Motion to Dismiss Plaintiff’s
Fourth Amended Complaint (“Defendants’ Reply”) (docket entry 86). The
defendants’ motion is now ripe for decision.
II. ANALYSIS
A. Legal Standard
“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182

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(2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(internal quotation marks, brackets, and citation omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina
Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted). “The court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction
Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004))
(internal quotation marks omitted).
The Supreme Court has prescribed a “two-pronged approach” to determine
whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). The court must “begin by identifying the pleadings
that, because they are no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679. The court should then assume the veracity of any well-pleaded
allegations and “determine whether they plausibly give rise to an entitlement of
relief.” Id. The plausibility principle does not convert the Rule 8(a)(2) notice
pleading standard to a “probability requirement,” but “a sheer possibility that a

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defendant has acted unlawfully” will not defeat a motion to dismiss. Id. at 678. The
plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “[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.’” Id. at 679 (alteration in original) (quoting Fed. R. Civ. P.
8(a)(2)). The court, drawing on its judicial experience and common sense, must
undertake the “context-specific task” of determining whether the plaintiff’s
allegations “nudge” its claims against the defendants “across the line from conceivable
to plausible.” See id. at 679, 683.
B. Application
From the outset, it appears that the plaintiff now concedes the futility of
repleading, in identical form, its claim for relief under 29 U.S.C. § 1132(a)(3). See
AP’s Response at 6. In light of the plaintiff’s concession, the court finds it
appropriate to dismiss that claim with prejudice. As such, the only remaining issue
before the court is whether AP’s claims under § 1132(a)(1)(B) are sufficient to
survive a Rule 12(b)(6) challenge.
In asserting claims for benefits under ERISA, a plaintiff must allege in its
complaint enough facts about an ERISA plan’s provisions to make a § 1132 claim
plausible and provide the defendant notice as to which provisions it allegedly

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breached. Texas General Hospital, LP v. United Healthcare Services, Inc., No. 3:15-CV2096-M, 2016 WL 3541828, at *4 (N.D. Tex. June 28, 2016) (Lynn, Chief J.)
(citing Encompass Office Solutions, Inc. v. Ingenix, Inc., 775 F. Supp. 2d 938, 969 (E.D.
Tex. 2011)). “Absent such allegations, a complaint fails to state a claim under [29
U.S.C. § 1132(a)(1)(B)].” Id. (citing Paragon Office Services, LLC v. UnitedHealthcare
Insurance Company, Inc., No. 3:11-CV-2205-D, 2012 WL 5868249, at *2 (N.D. Tex.
Nov. 20, 2012) (Fitzwater, Chief J.)).
“A plaintiff who brings a claim for benefits under ERISA must identify a
specific plan term that confers the benefit in question.” Paragon Office Services, 2012
WL 5868249, at *2; see also Innova Hospital San Antonio, L.P. v. Blue Cross and Blue
Shield of Georgia, Inc., 995 F. Supp. 2d 587, 601-02 (N.D. Tex. 2014) (O’Connor, J.)
(“Plaintiffs’ general allegations that [the defendants] did not reimburse the amounts
due under the terms of the plans, without further factual assertions about the plans’
terms, fall short of the plausibility requirement.”). In some previous cases, however,
even after failing to provide specific plan terms, plaintiffs nonetheless were able to
withstand Rule 12(b)(6) challenges based on the sufficiency of their factual
allegations. In Texas General Hospital, for example, the court rejected the defendant’s
Rule 12(b)(6) motion where the plaintiffs made, in the court’s view, sufficient factual
allegations as to the terms of the plans the defendant had allegedly violated, and
provided both the number of the alleged violations, and the time period during which

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they occurred, to place the defendants on notice. Texas General Hospital, 2016 WL
3541828, at *4.
In another case, Grand Parkway Surgery Center, LLC v. Health Care Service
Corporation, No. H-15-0297, 2015 WL 3756492 (S.D. Tex. June 16, 2015), the
Southern District of Texas concluded that the plaintiff’s factual allegations -- in
particular, “that the plan terms ‘allow for reimbursement of reasonable and necessary
medical expenses at usual and customary rates’ and that [the defendant] made
reimbursement at drastically reduced rates” -- were sufficient to withstand a Rule
12(b)(6) challenge. Id. at *4. Even though the plaintiff in Grand Parkway failed to
identify which of its claims involved ERISA plans and which involved private plans,
the court determined that the plaintiff’s references to specific plan terms were
sufficient to warrant denial of the motion to dismiss. See id.
Before the Memorandum Opinion and Order of October 27, 2017 issued, AP
alleged generally that the defendants paid the claims it submitted in the regular
course of business until June 2015, when the defendants altered their course of
dealings and began denying all of AP’s submitted claims. See Plaintiff’s Third
Amended Complaint ¶¶ 19-30 (docket entry 59). After the court dismissed the
plaintiff’s § 1132(a)(1)(B) claims, AP amended its complaint in an effort to cure the
factual deficiencies found in its previous pleadings. See Fourth Amended Complaint.

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AP provides more detailed factual allegations in its Fourth Amended
Complaint. Specifically, in paragraph 16, AP provides allegations about key terms of
the Plan. Id. ¶ 16. According to AP, the defendants have refused to provide the
actual Plan document and, as such, AP relies on the summary plan description1 in
describing the relevant terms of the Plan. Id. ¶ 16 n.1. AP alleges that the Plan “will
pay beneficiaries of the Plan 80% of ‘in network’ medical expenses and 70% of outof-network medical expenses,” and, further, that AP “is an out-of-network medical
provider with respect to the Plan.” Id. ¶ 16. Continuing, AP’s Fourth Amended
Complaint also describes the types of services covered under the Plan, “x-rays, MRIs,
chiropractic services, physical therapy, physician visits, pain management services,
and orthopedic evaluations,” and provides a ballpark estimate, “more than one
hundred,” of the number of Plan beneficiaries AP treated. Id. ¶ 17. Further, AP
contends that the defendants violated the terms of the Plan by denying repayment on
the inappropriate and unwarranted presumption that the patients’ treatment was for
work related injuries. Id. ¶ 27. This new complaint makes clear that AP’s primary
allegation is that the “[d]efendants violated the terms of the Plan by failing to pay

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As AP describes in its Fourth Amended Complaint and response to the
defendants’ motion to dismiss, the summary plan description is designed as a source
of information for plan beneficiaries and “must reasonably apprise [plan] participants
and beneficiaries of their rights and obligations under the plan.” Fourth Amended
Complaint ¶ 16 n.1; AP’s Response at 2-3 (quoting 29 U.S.C. § 1024(b)(1)).
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[AP] for covered medical expenses at the 70% reimbursement called for in the Plan.”
See id. ¶ 35.
The defendants maintain that the Fourth Amended Complaint, like its
predecessors, is insufficient because it “fails to provide basic information regarding
the patients and claims, such as dates of service, claim numbers, amounts charged,
and the services alleged to have been provided.” Defendants’ Motion at 7. The
defendants also point out that AP “made no effort to describe the services it provided
to the patients for which it seeks benefits.” Id. at 8. In their reply, the defendants
appear to argue that the only reason the courts in Texas General Hospital and Grand
Parkway denied the motions to dismiss was because the plaintiffs in those cases
provided detailed spreadsheets of non-payments and underpayments. See
Defendants’ Reply at 2-3.
The court disagrees with the defendants’ contentions. The Third Amended
Complaint’s principal deficiency was its failure to identify specific plan terms or
provide sufficient factual assertions about those terms. Memorandum Opinion and
Order at 18-19. Unlike its previous attempts, AP’s Fourth Amended Complaint
provides detailed factual allegations as to the terms in question as well as descriptions
of the defendants’ actions that, according to AP, violated those terms. Because AP’s
Fourth Amended Complaint contains enough facts to “nudge” their § 1132(a)(1)(B)
claims “across the line from conceivable to plausible,” the court denies the

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defendants’ request for dismissal of those claims. Iqbal, 556 U.S. at 679, 683; see
also Texas General Hospital, 2016 WL 3541828, at *4. If AP’s remaining claims
contain any additional deficiencies, the defendants can address those deficiencies
through a motion for summary judgment.
III. CONCLUSION
For the reasons stated above, the defendants’ motion is GRANTED in part
and DENIED in part. The plaintiff’s claim for relief under 28 U.S.C. § 1132(a)(3) is
DISMISSED with prejudice, but the portion of the defendants’ motion challenging
the sufficiency of the plaintiff’s claims for relief under 28 U.S.C. § 1132(a)(1)(B) is
DENIED.
SO ORDERED.
March 27, 2018.

___________________________________
A. JOE FISH
Senior United States District Judge

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