Winterbottom v. Underriner
| Decision Date | 31 October 2019 |
| Docket Number | CIVIL NO. 19-00364 JAO-WRP |
| Parties | GLEN M. WINTERBOTTOM, Plaintiff, v. DAVID T. UNDERRINER, in his official capacity as President of Kaiser Foundation Health Plan and Hospitals of Hawaii; CATHERINE A. KORTZEBORN, in her official capacity as Deputy Regional Administrator of U.S. Centers for Medicare and Medicaid Services, Region 9 - San Francisco, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Plaintiff Glen M. Winterbottom ("Plaintiff") initiated this action for disability discrimination because he will lose Kaiser Foundation Health Plan, Inc. ("Kaiser") medical benefits upon turning 65, as Kaiser does not offer Medicare coverage in the zip code area where he resides. Defendant David T. Underriner, in his official capacity as President of Kaiser,1 moves to dismiss this action because Plaintiff lacks standing, failed to exhaust administrative remedies, and fails to state a claim. For the following reasons, the Court GRANTS Kaiser's Motion to Dismiss Complaint. ECF No. 6.
Plaintiff, who is currently 64 years old, has been a member of Kaiser's Health Maintenance Organization since September 14, 1996. Compl. ¶ 7. In April 2019, Plaintiff learned that upon turning 65 on November 26, 2019, he will be unable to obtain Medicare coverage through Kaiser's Medicare Advantage ("MA") plan because the zip code in which he resides is one of the zip codes in the District of Ka'u on the Big Island—96718, 96772, and 96777—excluded from coverage. Id. ¶¶ 10, 15.
Plaintiff sought clarification from Kaiser administrators, and during a conference call, Kaiser employees informed Plaintiff that Kaiser cannot offer him its MA plan due to contractual obligations with the Centers for Medicare and Medicaid Services ("CMS"). Id. ¶ 17.
Plaintiff initiated this action on July 9, 2019. He asserts the following claims: (1) violation of Title III of the Americans with Disabilities Act ("ADA"),42 U.S.C. § 12182 (Counts 1 and 2); (2) violation of CMS's Medicare Managed Care Manual ("MMCM") § 10.5.2 (Count 3); (3) violation of 48 C.F.R § 1.602-1 (Count 4); and (4) violation of "at least spirit of" 42 C.F.R. § 422.2 (Count 5). Plaintiff requests declaratory and injunctive relief. Id. at 12-14.
The parties timely filed their briefing. However, at 10:16 a.m. on the day of the hearing, Plaintiff filed a document titled "Plaintiff's Oral Statement in Opposition to Defendant David T. Underriner's Motion to Dismiss Complaint." ECF No. 35. This is an unauthorized surreply. See Local Rule 7.2 (). The Court nonetheless elects to consider it because Plaintiff is self-represented and because it does not change this Motion's disposition. However, Plaintiff is cautioned that in the future, he may not file supplemental briefing without leave of court. Any such briefing will be stricken.
Under Federal Rule of Civil Procedure ("FRCP") 12(b)(1), a district court must dismiss a complaint if it lacks subject matter jurisdiction to hear the claims alleged in the complaint. Fed. R. Civ. P. 12(b)(1). A jurisdictional attack pursuant to FRCP 12(b)(1) may be facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). A facial attack challengesthe sufficiency of the allegations contained in a complaint to invoke federal jurisdiction, while a factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. District courts may review evidence beyond the complaint to resolve a factual attack on jurisdiction without converting a motion to dismiss into a motion for summary judgment. See id. (citation omitted). In such instances, courts "need not presume the truthfulness of the plaintiff's allegations." Id. (citation omitted); see also Courthouse News Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014) . "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Safe Air, 373 F.3d at 1039 (citation omitted).
FRCP 12(b)(1) also requires a district court to dismiss a complaint for lack of subject matter jurisdiction where a plaintiff lacks standing to sue. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) . When a plaintiff lacks constitutional standing, asuit "is not a and an Article III federal court therefore lacks subject matter jurisdiction over the suit." City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th Cir. 2015) (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)); City of Los Angeles v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009).
In determining constitutional standing, the trial court has the authority "to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing." Maya, 658 F.3d at 1067 (citations omitted). Courts "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party" when "ruling on a motion to dismiss for want of standing." Warth v. Seldin, 422 U.S. 490, 501 (1975) (citation omitted).
FRCP 12(b)(6) authorizes dismissal of a complaint that fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, "the court accepts the facts alleged in the complaint as true," and "[d]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged." UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (alteration in original) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonableinferences are insufficient to defeat a motion to dismiss. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted); Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (citation omitted). Furthermore, the court need not accept as true allegations that contradict matters properly subject to judicial notice. See Sprewell, 266 F.3d at 988 (citation omitted).
"To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The tenet that the court must accept as true all of the allegations contained in the complaint does not apply to legal conclusions. See id. As such, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (citing Fed. R. Civ. P. 8(a)(2)) (some alterations in original). If dismissal is ordered, the plaintiff should be granted leave to amendunless it is clear that the claims could not be saved by amendment. See Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007) (citation omitted).
Kaiser seeks dismissal under both FRCP 12(b)(1) and 12(b)(6). As for FRCP 12(b)(1), Kaiser contends that Plaintiff lacks standing to complain about Medicare benefits because, at age 64, he is not yet eligible for Medicare benefits and even if he has standing, his claims are preempted by the Medicare Act.2 Mem. in Supp. of Mot., ECF No. 6-1, at 6.
Alternatively, Kaiser argues that Plaintiff's claims against Kaiser must be dismissed because its service area is controlled by CMS and can only be expanded through CMS's regulatory approval process. Id. The Court addresses each argument in turn.
As a preliminary matter, the Court addresses Kaiser's request for judicial notice of CMS's MMCM and of its Expansion Application. Id. at 10 n.5 (). Pursuant to Federal Rule of Evidence ("FRE") 201, courts can take judicial notice of facts not subject to reasonable dispute because they are generally known or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. The Court finds that judicial notice is appropriate. Both these documents contain facts that can be readily determined from accurate sources and Plaintiff himself asserts a violation of the MMCM and includes relevant portions of it in his Complaint. The Court takes judicial notice of the documents "without converting the motion to dismiss...
To continue reading
Request your trial