United States District Court, D. New Jersey
UNIVERSITY SPINE CENTER, on assignment of Menachem G., Plaintiff,
EMPIRE BLUE CROSS AND BLUE SHIELD and JOHN DOE, being a fictitious name for the Plan Administrator whose identity is presently unknown, Defendants.
WILLIAM J. MARTINI, U.S.D.J.
University Spine Center brings this action against Defendant
Empire Blue Cross & Blue Shield, alleging violations of
the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001, et
seq., in connection with Defendant's partial failure
to reimburse Plaintiff for medical services rendered to a
participant (the “Patient”) of Defendant's
health insurance plan (the “Plan”). This matter
comes before the Court on Defendant's motion to dismiss
pursuant to Federal Rule of Procedure 12(b)(1) and (b)(6).
There was no oral argument. Fed.R.Civ.P. 78(b). For the
reasons set forth below, Defendant's motion is
GRANTED and Plaintiff's Complaint is
DISMISSED WITH PREJUDICE. Defendant's
request for attorneys' fees and costs is
is a healthcare provider in Passaic County, New Jersey.
Compl. ¶ 1. Defendant is a health insurance company
responsible for the Plan at issue here. See id.
¶ 2. On July 9, 2012, Plaintiff performed several spinal
procedures on Patient. See id. ¶¶ 6- 7.
Plaintiff submitted claim forms to Defendant for
reimbursement of those services in the amount of $528,
736.00, but Defendant only reimbursed $22, 042.64 of that
amount. Id. ¶¶ 10-11. Plaintiff
subsequently filed this action on March 16, 2018, seeking
$298, 366.96 in reimbursement from Defendant, alleging
several ERISA violations, including failure to make all plan
payments, breach of fiduciary duty and failure to produce
requested documentation. See id. ¶¶ 18-41.
Plaintiff asserts that Patient assigned his Plan benefit
rights to Plaintiff and that it is “enabled to bring
this action by virtue of the assignment.” See
id. ¶¶ 8-9.
now moves to dismiss Plaintiff's complaint (the
“Complaint”). See Def.'s Mem. of Law
in Supp. of Its Mot. to Dismiss (“Def.'s
Mem.”), ECF No. 8-1. Defendant asserts, and Plaintiff
does not deny, that Plaintiff is an out-of-network healthcare
provider that did not have a contract with Defendant at the
time that it rendered services to Patient. See id.
at 6. Defendant also argues that Plaintiff's claims are
subject to a two-year contractual limitation, which renders
them time-barred. See id. at 31-33. Defendant raises
several other issues with the Complaint, which the Court need
not address further for reasons stated below.
filed a two-page letter brief in lieu of a formal opposition,
requesting that the Court stay Defendant's motion and
grant Plaintiff leave to file an amended complaint.
See Br. in Opp'n (“Pl.'s
Opp'n”), ECF No. 14. Plaintiff reasons,
“Rather than argue over the effect that the specific
anti-assignment provision in [Patient's] Plan has on
Plaintiff's standing in this matter, and waste scarce
judicial resources in deciding the Motion, Plaintiff would
rather re-file with a perfected claim of standing through a
power of attorney.” Id. at 1. Plaintiff
asserts, “The Third Circuit expressly stated in Am.
Orthopedic & Sports Med. v. Indep. Blue Cross Blue
Shield, that a provider may obtain standing through a
Power of Attorney.” Id. Plaintiff further
claims that the remainder of the purported deficiencies
raised by Defendant can easily be cured by an amended
pleading. Id. at 1-2. Plaintiff attached a notice of
cross-motion for leave to amend its complaint, but it did not
include a copy of the proposed amended complaint in
compliance with the District of New Jersey Local Civil Rule
15.1(a). See Notice of Cross-Motion, ECF No. 14-1.
reply, Defendant responds that the Court should deny
Plaintiff's request for leave to amend the Complaint
because Plaintiff has not alleged that it intends to
prosecute this action as Patient's attorney-in-fact.
See Def.'s Reply Mem. of Law in Supp. of Mot. to
Dismiss (“Def.'s Reply”) 5-9, ECF No. 15.
Defendant also argues that any attempt to amend the Complaint
would be futile. See id. at 9-13. Defendant
reiterates that Plaintiff's ERISA claims are time-barred
by the two-year limitation provision in the Plan. See
id. at 13-14. Finally, Defendant moves for its
attorneys' fees and costs because Plaintiff initiated
this matter despite its lack of standing and its
“serial filing of complaints, without basis in law or
fact, cannot be ignored nor should be tolerated[.]”
See id. at 14.
Rule of Civil Procedure 12(b)(1) provides for the dismissal
of a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). There are two types of challenges to
subject-matter jurisdiction: (1) facial attacks, which
challenge the allegations of the complaint on their face; and
(2) factual attacks, which challenge the existence of
subject-matter jurisdiction, quite apart from any pleadings.
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). In reviewing a factual
attack, like the one in this case, the court may consider
evidence outside the pleadings, and no presumptive
truthfulness attaches to the plaintiff's allegations.
Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000); Gotha v. United States, 115 F.3d
176, 178-79 (3d Cir. 1997). The plaintiff bears the burden of
proving that jurisdiction exists. Gould Elecs., 220
F.3d at 178.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if the plaintiff fails
to state a claim upon which relief can be granted. The moving
party bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005). In deciding a motion to dismiss under Rule
12(b)(6), a court must take all allegations in the complaint
as true and view them in the light most favorable to the
plaintiff. See Warth v. Seldin, 422 U.S. 490, 501
(1975); Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
a complaint need not contain 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, the factual allegations must be sufficient
to raise a plaintiff's right to relief above a
speculative level, such that it is “plausible on its
face.” See Id. at 570; see also Umland v.
PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
“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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). While “[t]he plausibility standard is not akin to
a ‘probability requirement' . . . it asks for more
than a sheer possibility.” Id.
case represents yet another in a long line of cases filed by
Plaintiff against insurers for reimbursement of
out-of-network procedures. See, e.g., Univ.
Spine Ctr. v. Horizon Blue Cross Blue Shield of N.J.,
No. 16-cv-8021, 2018 WL 2134060, at *2 n.2 (D.N.J. May 9,
2018), appeal docketed, No. 18-2279 (3d Cir. June
12, 2018). The Third Circuit recently determined that
anti-assignment clauses in ERISA plans are enforceable.
See Am. Orthopedic & Sports Med. v. Indep. Blue Cross
Blue Shield, 890 F.3d 445, 453 (3d Cir. 2018) (“We
now . . . hold that anti-assignment clauses in ERISA-governed
health insurance plans as a general matter are
enforceable.”). The Plan at issue here contains an
anti-assignment clause, which reads:
Only Covered Persons can receive the benefits provided under
this Contract for payment. Therefore, except as otherwise
specifically set forth elsewhere in this Contract, any
attempt to assign benefits or payments for benefits will be
void unless authorized by us in writing, and no benefits,