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Pushkin v. Nussbaum

United States District Court, D. New Jersey

September 11, 2014

DR. DAVID B. PUSHKIN, Plaintiff,


KEVIN McNULTY, District Judge.

This matter comes before the Court upon the motion of the Plaintiff, David B. Pushkin, for leave to amend the Second Amended Complaint (Docket No. 275). Briefs in opposition are filed by: (1) Meritain Health, Inc. ("Meritain Health") and Timothy J. Quinlivan, Esq. ("Quinlivan), (collectively the "Meritain Defendants") (Docket No. 278); (2) Kevin L. Bremer, Esq. ("Bremer") and Aronsohn Weiner & Salerno, P.C. ("AWS") (Docket No. 280); (3) GEICO, Lisa Ardon ("Ardon"), Gina Fuge ("Fuge"), Dominic Spaventa ("Spaventa") and Paul Feldman ("Feldman") (collectively the "GEICO Defendants") (Docket No. 281); (4) Premier Prizm Solutions, LLC ("PPS") (Docket No. 282); (5) RHI Entertainment, Inc. ("RHI") (Docket No. 283); and (6) Beth R. Nussbaum ("Nussbaum") (Docket No. 284). Pushkin filed a consolidated reply brief on July 10, 2014 (Docket No. 285).

Pursuant to FED. R. CIV. P. 78, this motion is decided without oral argument. For the reasons set forth below, Plaintiff's motion is denied.


a. Procedural history

On or about November 30, 2010, Pushkin filed an initial complaint against Defendants Nussbaum, RHI, Quinlivan, Meritain Health, Bremer, and AWS, seeking to recover damages allegedly stemming from the denial of medical coverage and benefits to which Pushkin believes he was entitled. (Docket No. 2). On February 17, 2011, Pushkin filed an Amended Complaint naming additional Defendants, including the GEICO Defendants and PPS. (Docket No. 13). All Defendants filed motions to dismiss the (First) Amended Complaint. By Opinion and Order dated April 24, 2013 (Docket Nos. 227, 228), the Hon. Dennis M. Cavanaugh dismissed the Amended Complaint for lack of specificity and failure to comply with Rule 8's requirement of a "short and plain statement of the claim." FED. R. CIV. P. 8(a)(2). That dismissal was without prejudice; Plaintiff was granted leave to amend the complaint.

The case was reassigned to me on April 3, 2014. On July 26, 2013, Pushkin filed the Second Amended Complaint ("2AC"). (Docket No. 232). All defendants filed motions to dismiss the 2AC, alleging that the 2AC had not cured the deficiencies of Plaintiff's dismissed Amended Complaint. (Docket Nos. 241, 243, 244, 247, 252, 253). By Opinion and Order dated April 15, 2014, I granted the defendants' motions and dismissed the 2AC. My Order provided that, unless Plaintiff moved for leave to amend his complaint a third time within 30 days and that motion was granted, the dismissal of the 2AC would be with prejudice. On May 5, 2014, Plaintiff filed a motion for leave to amend the 2AC (Docket No. 275). On May 22, 2014, I ordered defendants to respond, directing them to focus on the issue of futility, and authorizing them to to incorporate by reference arguments from prior filings. (Docket No. 277) All defendants filed briefs in opposition, asserting that the Proposed Third Amended Complaint ("P3AC") had not cured the deficiencies of the dismissed 2AC.

b. Factual allegations

The following factual allegations are taken from the P3AC. For purposes of this motion, they are accepted as true. In general, Pushkin has sued his ex-wife, her former employer, her lawyers, health and auto insurers, third party administrators, and others. He holds them collectively responsible for, inter alia, his failure to receive insurance reimbursement for certain injuries from his ex-wife's health insurer and an auto insurer.

Dr. Pushkin is a science educator, formerly employed by Bergen Community College and Fairleigh Dickinson University. He sustained an injury in August 2005 and was diagnosed with a lumbar spinal fracture between November 26, 2006 and January 22, 2007. On January 28, 2008, he sustained additional spinal injury in a motor vehicle accident. On March 21, 2007, he underwent fusion surgery on his lumbar spine. Pushkin asserts that by the end of 2008, he was no longer capable of performing duties associated with teaching chemistry and physics, and his employment was terminated on December 18, 2008. He filed for unemployment benefits and has not been employed since.

Dr. Pushkin married Nussbaum on December 28, 2003. They separated on February 12, 2009. Pushkin filed for divorce on or about July 28, 2009, and the divorce was finalized January 8, 2010. Bremer, an attorney employed by AWS, a New Jersey law firm, represented Nussbaum in the divorce proceedings. During the marriage, Nussbaum was an employee of RHI and was covered under the RHI employee benefit health plan ("RHI Plan"). Pushkin, as Nussbaum's spouse, received benefits under the RHI Plan between 2003 and 2009. Meritain Health was the Third Party Administrator ("TPA") of the RHI Plan. Quinlivan was an attorney employed by Meritain Health during the relevant time period. Pushkin alleges that Meritain and Quinlivan made "false claims" about his coverage to the New Jersey Department of Banking and Insurance, the New York Attorney General's Office, and the U.S. Department of Labor.

In November 2008, Nussbaum's employment was terminated by RHI. From November 2008 to September 2009, Pushkin and Nussbaum received additional COBRA health insurance coverage. Nussbaum terminated her COBRA coverage on September 21, 2009. Pushkin alleges that he was eligible for an additional eleven months of COBRA coverage. He further states that he was not advised of his eligibility for benefits beyond September 21, 2009.

It may be gleaned that, against RHI, Pushkin alleges fraud, breach of contract, interference with his access to healthcare benefits, interference with his right to hold and convey real and personal property, violations of the New Jersey Group Insurance Coverage Discontinuance and Replacement Law, the American Recovery and Reinvestment Act of 2009 ("ARRA"), the 2010 Recovery Act's COBRA Health Insurance Continuation Premium Subsidy, the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), and many additional New Jersey statutes. Pushkin also alleges that Meritain and RHI interfered with his access to medical care and filed a lien that prevented him from receiving the settlement proceeds resulting from his motor vehicle accident.

Pushkin maintained auto insurance coverage with GEICO. PPS is a TPA of Personal Injury Protection Benefits ("PIP") for GEICO. Spaventa, Fuge, Ardron, and Feldman were GEICO employees at the time Pushkin filed his motor vehicle claim. Spaventa and Fuge handled the claim, Ardron supervised Spaventa and Fuge, and Feldman supervised Ardron. Pushkin alleges that after his car accident, GEICO, PPS, and employees Spaventa, Fuge, Ardron, and Feldman made false claims to the New Jersey ...

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