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Glastein v. Horizon Blue Cross Blue Shield of America

United States District Court, D. New Jersey

August 13, 2018



          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on Plaintiff Dr. Cary Glastein's Motion to Remand (ECF No. 11), and Defendants Horizon Blue Cross Blue Shield of New Jersey and International Vitamin Company's Motions to Dismiss pursuant Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 16 and 17). For the reasons discussed herein, Defendants' Motions to Dismiss are granted, and Plaintiffs Motion to Remand is denied as moot.


         This case arises from a dispute over reimbursement for medical services rendered by an out-of-network medical provider. Plaintiff Dr. Cary Glastein, resides in New Jersey and is "a Board Certified and Fellowship Trained Orthopedic Surgeon". (Complaint at ¶ 1). On August 29, 2016, Dr. Glastein performed lumbar spinal surgery on non-party J.P. (Id. at ¶ 17). Dr. Glastein alleges that J.P. "received health benefits through his employer, [IVC], which is a self-insured plan administrated by [D]efendant, BCBS." (Id. at¶16). Plaintiff further avers that he "was a non-participating or out-of-network provider [who] rendered [the] medically necessary surgery." (Id. at ¶ 15). As an out of network medical provider, Plaintiff contacted BCBS, prior to performing the surgery in order to obtain authorization to perform the surgery on J.P. (Id. at ¶ 22). In the Complaint, Plaintiff vaguely described this interaction between BCBS and himself:

Plaintiff provided pre-authorized necessary medical services to patient, "JP" namely lumbar spinal surgery performed on August 29, 2016 consisting of a laminectomy at L 3-4, posterior spinal fusion at L 3-4, use of autologous bone graft along with I-FACTOR Peptide and placement of an SpF spinal stimulator to correct lumbar instability, lumbar spinal stenosis and adjacent segment degeneration at ¶ 3-4.

(Id. at ¶ 17).

         In their responding papers, BCBS submitted the precertification authorization[1] it issued Plaintiff on July 26, 2016. (ECF No. 16-4, "Authorization"). The Authorization states, in pertinent part:

This authorization determines the medical necessity of the services requested that require authorization are based upon the information provided. It is NOT a guarantee of payment. It is issued subject to the terms and limitations of your agreement and the member's benefit plan, and subject to the member being eligible at the time services are provided.

(Id.). Relying on BCBS's Authorization, Plaintiff performed the surgery. After completing the procedure, Plaintiff billed BCBS $260, 275; however, BCBS only paid $8, 949.13 - leaving more than $250, 000 in dispute. (Complaint at ¶¶ 18-20). Dr. Glastein alleges that he is "proceeding on [his] own individual claims concerning medical services provided to the patient, JP" and that the present matter is properly venued in State Court, since "[n]one of plaintiffs claims ... are governed by federal law, including the Employee Retirement Income Security Act (ERISA)." (Id. at ¶¶ 10-11).

         On August 21, 2017, Plaintiff filed this Complaint in the Superior Court of New Jersey against BCBS and IVC seeking reimbursement for the difference between the amount billed and paid. Plaintiff asserts causes of action for breach of contract, promissory estoppel, account stated and fraudulent inducement.

         On October 6, 2017, Defendants timely removed the case to this Court, based on federal question jurisdiction. (ECF No. 1). Specifically, Defendants contend that because the cases arises from a dispute over an "employee welfare benefit plan" so Plaintiffs state law claims are preempted by ERISA. Presently before the Court are Plaintiffs motion to remand and Defendants' cross-motions to dismiss.

         Legal Standard

         On a motion to dismiss, the Court reviews the complaint to determine whether there are sufficient factual allegations that "provide the 'grounds of his 'entitle[ment] to relief."' Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Phillips v. Cty. of Alleghany, 515 F.3d 224, 231 (3d Cir. 2008). To show facial plausibility, there must be sufficient facts pled to allow the Court to draw a reasonable inference that the defendant is liable for cause of action alleged or, in this case, whether jurisdiction exists. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order to determine facial plausibility, a court must undertake a three-step test: (1) the court must set forth the elements of the cause of action plaintiff must prove; (2) it must then "peel away" conclusory and legal opinions that are "not entitled to the assumption of truth"; and, finally, (3) it should assume the veracity of the well-pleaded facts and then determine plausibly of the cause of action. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citing Iqbal, 556 U.S. at 679; Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 69 (3d Cir. 2011)). "This last step is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 556 U.S. at 679).

         In applying the pleading standard set forth in Iqbal and Twombly, the Court finds that the Complaint fails to pass muster since it lacks plausibility for several reasons. First, the Complaint alleges several statements that are purely legal conclusions and, therefore, are not entitled ...

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