Sarene Servs., Inc. v. Empire Blue Cross/Blue Shield, an Anthem Co.
| Decision Date | 29 January 2019 |
| Docket Number | 17-CV-5276 (DRH)(AYS) |
| Parties | SARENE SERVICES, INC., doing business as Serene Home Nursing Agency, Plaintiff, v. EMPIRE BLUE CROSS/BLUE SHIELD, an Anthem Company, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
For Plaintiff:
THE LAW OFFICES OF IRA C. PODLOFSKY
2956 Route 112
Medford, New York 11763
By: Ira Podlofsky, Esq.
For Defendant:
FOLEY & LARDNER LLP
90 Park Avenue
New York, New York 10016
By: Rachel E. Kramer, Esq.
Plaintiff Sarene Services Inc. ("Plaintiff" of "Sarene") commenced this action in the Supreme Court, Suffolk County, asserting claims for breach of contract, unjust enrichment, and account stated against defendant Empire Blue Cross/Blue Shield ("Defendant" or "Empire"). Defendant thereafter removed the action to this Court asserting jurisdiction exists pursuant to 28 U.S.C. ¶ 1441(b) inasmuch as Plaintiff seeks payment for services allegedly rendered by it to a Medicare patient enrolled in Defendant's Medicare Advantage plans. Presently before the Court is Defendant's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.
The following allegations are taken from the Complaint ("Compl.")
Plaintiff is a home nursing agency located in Suffolk County New York. Defendant is "a private insurance company whose business requires it to retain the services of home nursing services to provide high-technology, in-home services to its insureds." (Compl. ¶¶ 1 & 2.) "On October 20, 2015, [P]laintiff received telephone and then fax information from the defendant as to patient RB who was identified as an insured of the [D]efendant who required in-home nursing services." (Id. ¶ 4.) That same day, Plaintiff received "Authorization #C03664811" from defendant via facsimile. Said authorization constituted instructions "to begin home nursing services as required." On November 13, 2015 Plaintiff commenced providing home nursing services 24 hours per day, seven days per week to patient RB; the provision of services has continued to date. (Id. ¶¶ 6 & 7.) Plaintiff has submitted all required claim forms, supporting documentation and multiple demands for payment to Defendant. Defendants have not made payment and Plaintiff alleges it is owed $3,984,340.96, plus interest, for the services rendered to RB. (Id. ¶¶ 8-11.)
The authorization for RB referenced in the complaint has been submitted by the Defendant. The authorization is dated October 20, 2015 and states:
According to Defendant, Patient RB was covered under Empire's MediBlue Freedom PPO plan from January 1, 2015 through December 31, 2015, was covered under traditional Medicare from January 1, 2016 through January 31, 2016, and was covered under Empire's MediBlue Plus HMO plan from February 1, 2016 through the present. Copies of the plan summary for Empire's MediBlue Freedom PPO plan and for the Empire's MediBlue Plus HMO plan have been submitted. 1 The plan documents provide that coverage for home nursing services is limited to "intermittent skilled nursing" services for no more than eight hours per day and 35 hours per week. (Ex. 2 to Kramer Declar. at 50; Ex. 3 to Kramer Declar. at 53-54.)
A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it."Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). "In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 'plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.' " MacPherson v. State St. Bank & Trust Co., 452 F. Supp. 2d 133, 136 (E.D.N.Y. 2006) (quoting Reserve Solutions Inc. v. Vernaglia, 438 F. Supp. 2d 280, 286 (S.D.N.Y. 2006)), aff'd, 273 F. App'x 61 (2d Cir. 2008); accord Tomaino v. United States, 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010). "In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions." Cunningham v. Bank of New York Mellon, N.A, 2015 WL 4101839, * 1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat'l Australia Bank, Ltd, 547 F.3d 167, 170 (2d Cir. 2008)).
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, a court should "draw all reasonable inferences in Plaintiff['s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal conclusions. Thus, "threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Although "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. A plaintiff must provide facts sufficient to allow each named defendant to have a fairunderstanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a "plausible claim for relief" can survive a motion to dismiss. Iqbal, 556 U.S. at 679. Id. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); see Weiss v. Village of Sag Harbor, 762 F. Supp. 560, 567 (E.D.N.Y. 2011) (). "Where a document is not incorporated by reference, the court may never[the]lessconsider it where the complaint 'relies heavily upon its terms and effect,' thereby rendering the document 'integral' to the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). "This generally occurs when the material considered is a 'contract or other legal document containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason—usually because the document, read in its entirety, would undermine the legitimacy of the plaintiff's claim—was not attached to the complaint.' " Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) . In accordance with the foregoing it is appropriate for the Court to consider the authorization attached to Defendant's papers.
Defendant maintains that although Plaintiff "nominally asserts state law claims," its claims arise under and are preempted by the Medicare Act. As such, the argument continues, this Court lacks jurisdiction because Plaintiff has failed to the exhaust administrative remedies provided under Medicare. It further argues that Plaintiff has failed to state any plausible cause of action because the preauthorization is not a contract and, in any event, neither by its terms nor those of the Medicare Advantage health plan covers 24/7...
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