OptumCare Mgmt. v. Gutierrez-Barela

• Decision Date: 29 November 2021
• Docket Number: 20-cv-00474 RB-SCY,20-cv-00817 SWS-MLC
• Parties: OPTUMCARE MANAGEMENT, LLC, Plaintiff, v. KRISTINA GUTIERREZ-BARELA, MD, Defendant.
• Court: U.S. District Court — District of New Mexico

OPTUMCARE MANAGEMENT, LLC, Plaintiff, v. KRISTINA GUTIERREZ-BARELA, MD, Defendant.

Nos. 20-cv-00474 RB-SCY, 20-cv-00817 SWS-MLC

United States District Court, D. New Mexico

November 29, 2021

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

Defendant Kristina Gutierrez-Barela, MD signed a Noncompetition and Nonsolicitation Agreement (the “Agreement”) in 2012 with HealthCare Partners, LLC (HCP), a predecessor to Plaintiff OptumCare Management, LLC. In relevant part, the Agreement provided that for two years after Gutierrez-Barela's employment ended, she would be unable to practice medicine within a defined geographical area. Gutierrez-Barela voluntarily terminated her employment with OptumCare in June 2019 and began working as a physician within the restricted area before two years had elapsed. OptumCare filed this lawsuit for breach of the Agreement or for unjust enrichment.

Gutierrez-Barela moves to dismiss on the basis that the Agreement is against public policy or is otherwise unenforceable. Alternatively she asks the Court to either abstain from deciding this matter and remand a related case to the state district court or to certify a question to the New Mexico Supreme Court. Having considered the parties' arguments and the relevant law, the Court will deny the motion.

I. Factual Background^[1]

OptumCare is a limited liability company. (Doc. 35 (Am. Compl.) ¶ 1.) OptumCare has undergone “a series of name changes from [HCP] to DaVita Medical Management, LLC[, ]” and finally to OptumCare. (Id.) Gutierrez-Barela is a physician and was, in 2012, “a Member of Medical Group Holding Company, LLC.” (Id. ¶ 11.) On July 24, 2012, she entered into a Merger Agreement between Medical Group Holding Company, LLC and OptumCare's predecessor, HCP.^[2] (Id. ¶ 12.) As part of the Merger Agreement, Gutierrez-Barela and HCP executed the Agreement at issue in this lawsuit. (Id.; see also Doc. 35-B.) In relevant part, the Agreement provided:

1. Member agrees that for a period (the “Non-Compete Term”) beginning on the date hereof and continuing until the time that is 2 years from and after Member ceases to be an employee of . . . the Company or its affiliates for any reason, Member will not own, acquire or have any other financial interest . . . in any medical group, independent practice association or management services organization that provides management services to physicians or in any other business that provides medical services to Plan enrollees located within the Service Area .... “Service Area” shall mean the four-county area comprising Bernalillo County, Sandoval County, Torrance County and Valencia County, New Mexico and any location within 20 miles from Member's current primary practice location or at a location within 20 miles from the other practice locations of any of the ABQ Parties, in either case whether within or outside of such four-county area.

2. In addition, Member agrees that during the Non-Compete Term, Member shall not (a) be engaged as an employee, officer, director, agent or consultant . . . with any medical group, independent practice association, hospital or clinic or other organization that is affiliated with a hospital, that provides medical services to Plan patients, or any management services organization that provides management services to physicians, nor shall Member provide medical services as a solo practitioner, where the Member's services are provided at a location within the Service Area, . . . and/or (b) recruit, solicit or otherwise seek to induce any person or entity that (i) provides services to HCP or any affiliate of HCP (including the Company) to terminate his or her employment or independent contractor relationship or violate any agreement with HCP or such affiliate or (ii) receives primary care medical services under any ABQ Plan Contract to receive primary care medical services from any provider other than through the Company.

(Doc. 35-B ¶¶ 1-2 (underlining omitted).)

Gutierrez-Barela “voluntarily terminated her employment with [OptumCare]” on June 18, 2019. (Am. Compl. ¶ 18.) Before the two-year non-compete term had expired, she began working as a physician within 20 miles from her former primary practice location contrary to the Agreement. (Id. ¶ 19.) She has also recruited OptumCare's employees and contractors. (Id. ¶ 20.) OptumCare alleges that these actions breached the parties' 2012 Agreement. (See id. ¶¶ 19-21, 23.)

The Agreement provides that “within 30 days of any violation of this Agreement by Member, ” the Member will “pay as damages to HCP an amount equal to the Merger Consideration received by such Member pursuant to the Merger Agreement, which payment shall be HCP's sole remedy for such breach.” (Doc. 35-B ¶ 4.) OptumCare gave Gutierrez-Barela $662, 479.72 as Merger Consideration. (Am. Compl. ¶ 24.) OptumCare asserts a claim for breach of the Agreement, or alternatively, for unjust enrichment. (See id. at 2, 5.)

II. The Court will deny the motion to dismiss.

A. Legal Standards

1. Motions to Dismiss under Rule 12(b)(6)

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (citation omitted). To survive a motion to dismiss, the complaint does not need to contain “detailed factual allegations, ” but it “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

2. Judicial Notice

“[W]hile ordinarily, a motion to dismiss must be converted to a motion for summary judgment when the court considers matters outside the complaint, see Fed.R.Civ.P. 12(d), matters that are judicially noticeable do not have that effect ....” Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Sec. Tr. 2006-3, 825 F.Supp.2d 1082, 1122 (D.N.M. 2011) (citation omitted). Gutierrez-Barela asks the Court to take judicial notice of seven documents: (1) a summary of data from the federal Health Resources and Services Administration (HRSA) that identifies “Medically Underserved Areas/Populations in New Mexico (see Doc. 37 at 4 (citing Doc. 5-1)); (2) a summary of data from the HRSA that identifies “Health Professional Shortage Areas” in New Mexico (id. (citing Doc. 5-2)); (3) a declaration from the Executive Director of the New Mexico Medical Society discussing N.M. Stat. Ann. § 24-1I-2(a), relating to the enforceability of physician noncompete agreements (id. at 5 (citing Doc. 13-1)); (4) a declaration from a New Mexico state senator discussing § 24-1I-2(a) (id. at 6 (citing Doc. 13-2)); (5) a summary of data about Medicaid in New Mexico from the Kaiser Family Foundation (KFF) (id. at 5 n.4 (citing Medicaid in New Mexico, https://files.kff.org/attachment/fact-sheet-medicaid-state-NM (Oct. 2019)); (6) a 2011 press release announcing the “Optum brand” (id. at 7 n.6 (citing UnitedHealth Group Announces “Optum” Master Brand for its Health Services Businesses, UnitedHealth Group, https://www.unitedhealthgroup.com/newsroom/2011/0411optum.html (Apr. 11, 2011)); and (7) a 2019 article regarding Optum's acquisition of DaVita (id. at 8 n.8 (citing Optum completes acquisition of DaVita Medical Group from DaVita, Optum, https://www.optumcare.com/about/news/optum-completes-acquisition-davita.html (July 19, 2019)).)

Regarding the data from the HRSA and the KFF, Gutierrez-Barela asserts that “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide web.” (Id. at 10-11 (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n.22 (10th Cir. 2009)).) The Court may only take judicial notice of such information, though, if it is “not subject to reasonable factual dispute and [is] capable of determination using sources whose accuracy cannot reasonably be questioned ” Richardson, 565 F.3d at 702 n.22. In Richardson, for example, the Tenth Circuit took judicial notice of the fact that falcons had been released into a specified area. See id. at 702. The court found that this fact was not reasonably disputed and was capable of determination using three accurate sources: the websites of two federal agencies and minutes from a state advisory council. Id. at 702 n.22. In ETP Rio Rancho Park, LLC v. Grisham, the court took judicial notice of two state executive orders “to provide context to [a] current state of the Public Health Emergency.” No. CIV 21-0092 JB/KK, 2021 WL 4478383, at *2 n.1 (D.N.M. Sept. 30, 2021) (citations omitted). The “facts” Gutierrez-Barela asks the Court to take judicial notice of do not fall within this category. The HRSA and KFF documents compile data without adequate explanation. And as OptumCare points out, this data is “not uncontroverted and [OptumCare] can produce evidence to dispute” it. (Doc. 38 at 4 n.3 (citing KidsKare, P.C. v. Mann, 350 P.3d 1228, 1233 (N.M. Ct. App. 2015)).)

Nor will the Court take judicial notice of the two articles about OptumCare. Gutierrez-Barela cites one article to support a statement that UnitedHealth Group “sells medical care services under its ‘Optum' brand[, ]” a fact that does not seem to be at issue in the motion or central to OptumCare's Amended Complaint. (See Doc. 37 at 7 n.6 (citation omitted).) She cites another article to support her argument that the Agreement was not assigned to OptumCare, because OptumCare bought DaVita. (See id. at 8 n.8.) Yet this assertion contradicts the Amended Complaint's allegations and is clearly a factual...