United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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 ¶
(Id. at ¶ 17).
their responding papers, BCBS submitted the precertification
authorization 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
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
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.
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).
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