McNeely v. Metro. Life Ins. Co.
| Citation | 376 F.Supp.3d 225 |
| Decision Date | 26 March 2019 |
| Docket Number | 18 Civ. 885 (PAC) |
| Parties | Carol MCNEELY, Scott D. Vlk, Shilpa Vlk, George K. Bernhard, Deborah Joyce, and Harry M. Tuber, on behalf of themselves and all others similarly situated, and David T. Rudziewicz, Frederick DeMaio, Donna R. Kobielski, and Donna Molta, Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, Metropolitan Life Retirement Plan for United States Employees, Savings and Investment Plan for Employees of Metropolitan Life and Participating Affiliates, MetLife Options & Choices Plan, and Welfare Benefits Plan for Employees of Metropolitan Life and Participating Affiliates, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Joanna Karolina Wasik, Michael Lieder, Mehri & Skalet, PLLC, Washington, DC, Stacey M. Gray, Stacey Gray P.C., New York, NY, for Plaintiffs.
Christopher Alan Parlo, Ashley Jean Hale, Hanna Elizabeth Martin, Melissa D. Hill, Melissa C. Rodriguez, Morgan, Lewis, & Bockius, LLP, New York, NY, for Defendants.
Plaintiffs, dentists and dental hygienists who evaluated claims submitted by treating dentists for Metropolitan Life Insurance Company ("MetLife"), bring this proposed class and collective action against MetLife and employee benefit plans1 under the Fair Labor Standards Act ("FLSA"), the Employee Retirement Income Security Act ("ERISA"), and the statutes and common law of Illinois, New York, New Jersey, and Rhode Island, Plaintiffs allege that MetLife unlawfully classified them and others similarly situated as independent contractors, when they were actually employees of MetLife who should have been compensated as regular fulltime employees in salary and benefits. Defendants moved to dismiss the ERISA and unjust enrichment claims entirely, and moved to dismiss the FLSA and state law overtime claims brought by the dentist Plaintiffs. The ERISA claims have since been stayed. (Dkt. 69.) The remaining claims at issue here are (1) the unjust enrichment claims of all Plaintiffs, and (2) the overtime FLSA and state law claims of the dentist Plaintiffs. For the following reasons, the Court GRANTS in part and DENIES in part Defendants' motion to dismiss.
The Second Amended Complaint2 alleges that, beginning some time before 2002, MetLife hired licensed dentists and dental hygienists as consultants to evaluate claims for benefits submitted by policyholders, participants, and beneficiaries in employee benefit plans (the "Dental Consultants"). (Dkt. 49 ("SAC") ¶ 1.) The Dental Consultants included licensed dentists—Plaintiffs Carol McNeely, Shilpa Vlk, George Bernhard, David T. Rudziewicz, and Frederick DeMaio (the "Dentist Plaintiffs"3 )—and dental hygienists—Plaintiffs Deborah Joyce, Donna Kobielski, and Donna Molta. (Id. ¶¶ 12-21.)
MetLife compensated the Dental Consultants as independent contractors even though, until November 2017, it determined and controlled all aspects of the performance of their duties to an extent that made them employees, not independent contractors. (See id. ¶ 1.) On October 31, 2017, MetLife rewrote its contract to explicitly call the Dental Consultants independent contractors, and changed some of its practices to treat them more like independent contractors.
MetLife did not pay the Dental Consultants on a salary basis, did not pay overtime when they worked more than forty hours in a week, and did not pay on a biweekly basis. (See SAC ¶¶ 4-5, 101-03, 108, 115; Prior Contract ¶ 1; New Contract ¶ 3.) Instead, MetLife paid them monthly based on the number of hours worked times a contracted rate per hour, without overtime pay. (See id. ) The Dental Consultants did, however, receive bonuses in the form of temporary increases in hourly rates based on the number of claims that they as a group were able to process during high-volume times. (SAC ¶ 93.)
The Dental Consultants were not offered certain employee benefits that generally were available to MetLife employees, including a variety of largely employer-paid insurance plans and a defined benefit pension plan. (Id. ¶¶ 6, 119.)
MetLife did not pay the employer portion of FICA taxes for the Dental Consultants' wages, and did not withhold the employee portion from their monthly pay. (Id. ¶¶ 7, 133; New Contract ¶ 3.) As a result, the Dental Consultants paid the combined employer and employee amount of FICA taxes. (SAC ¶ 134.)
The Dental Consultants' primary duties were to review claims for services, which involved reviewing clinical information submitted by treating dentists and evaluating whether the services rendered—such as crowns, bridges, onlays, implants, or periodontal treatments—were dentally necessary, to assist MetLife in deciding whether to pay for services. (Id. ¶¶ 72, 105.) Dental Consultants could recommend that an alternate, less expensive benefit be applied to a service, and if MetLife adopted the recommendation, benefits would be paid based only upon the less costly service. (Id. )
The Prior Contract listed the Dental Consultants' duties as: "a) Reviewing dental claims and rendering your professional opinion; b) Providing advice and counsel to the Claims Office staff; c) Communicating via telephone with submitting dentists to explain and clarify dental claims; and, d) Training Dental Consultants, as may be required." (Old Contract ¶ 2.) These four duties are also described in the schedule of services under the New Contract, and a fifth service is added: "Assisting MetLife's Claims Office Staff and Special Investigation Unit with potential fraudulent dental claims submissions and fraud investigations, including abuse and overutilization."
The Dental Consultants were not practicing dentistry. (SAC ¶ 105.) They did not have patient-provider relationships with any of the policyholders, participants, or beneficiaries, did not diagnose the patients' dental needs for the purpose of providing services to those patients, and did not assist or advise the practicing dentist in providing services to the patient. (Id. )
To defeat a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. The court must construe the factual allegations contained in the complaint as true and view the complaint in the light most favorable to plaintiffs. Twombly , 550 U.S. at 572, 127 S.Ct. 1955.
At the motion to dismiss stage, the court "assess[es] the legal feasibility of the complaint," but does not "assay the weight of the evidence which might be offered in support thereof." Lopez v. Jet Blue Airways , 662 F.3d 593, 596 (2d Cir. 2011). "When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the Complaint as exhibits or incorporated in it by reference." Fraser v. Fiduciary Tr. Co. Int'l , 417 F.Supp.2d 310, 317 (S.D.N.Y. 2006) (Crotty, J.) (citing Brass v. American Film Techs., Inc. , 987 F.2d 142, 150 (2d Cir. 1993) ).
The Internal Revenue Code ("IRC") provides that: "No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary...." 26 U.S.C. § 7422(a). Pursuant to § 7422(f), "the exclusive remedy for a tax refund is an action against the United States." Lehman v. USAIR Grp., Inc. , 930 F.Supp. 912, 916 (S.D.N.Y. 1996). Accordingly, a state law claim seeking a federal tax refund is preempted. See Brennan v. Sw. Airlines Co. , 134 F.3d 1405, 1409 (9th Cir.), amended sub nom. Brennan v. Sw. Airlines , 140 F.3d 849 (9th Cir. 1998).
Moreover, "the IRC does not explicitly create a private cause of action whereby an employee may sue an employer for a failure to make a required contribution." Ferro v. Metro. Ctr. for Mental Health , No. 13 CIV. 2347 PKC, 2014 WL 1265919, at *5 (S.D.N.Y. Mar. 27, 2014). The Second Circuit has not opined on whether an implied cause of action exists under the IRC, but courts in this District have held that there is not. See id. ; Reynolds v. de Silva , No. 09 Civ. 9218 (CM), 2010 WL 743510, at *7 (S.D.N.Y. Feb. 24, 2010) (collecting cases), abrogated on other grounds by Katz v. Cellco P'ship , 794 F.3d 341, 346 (2d Cir. 2015) ; Spilky v. Helphand , No. 91 CIV. 3045 (PKL), 1993 WL 159944, at *2-4 .
The Dental Consultants' unjust enrichment claims against MetLife are for FICA taxes that the Dental Consultants paid to the Internal Revenue Service ("IRS"), and they are preempted. To allow these claims to move forward would undermine the IRS's administrative scheme, which allows individuals to file claims for tax refunds that they believe they need not have paid. See Lehman , 930 F.Supp. at 916 (); Umland v. PLANCO Fin. Servs. , 542 F.3d 59, 66-68 (3d Cir. 2008) ().
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...his remedy lies with the IRS and the taxing authorities, not with Defendant. See 26 U.S.C. § 7422(a); McNeely v. Metro. Life Ins. Co., 376 F. Supp. 3d 225, 230 (S.D.N.Y. 2019). Indeed, in his opposition brief, Plaintiff does not even defend this theory of recovery and thus his claim may be ......