Opinion
A 04-93 CV (JWS), [Re: Motion at docket 30].
December 3, 2004
ORDER FROM CHAMBERS
I. MOTION TO BE DECIDED
This order addresses one of three interrelated motions. The first motion filed is plaintiffs' motion at docket 23 seeking to require defendant to comply with discovery requests. The second filed is defendant's motion for summary judgment at docket 25. The third motion — and the one addressed here — is plaintiffs' motion at docket 30 seeking relief under FED. R. CIV. P. 56(f). The motion at docket 30 has been fully briefed. No party has requested oral argument, and it would not assist the court.
II. BACKGROUND
Plaintiffs' amended complaint and defendant's answer thereto establish that Todd and Julie Anderson are insured under a policy of insurance issued by defendant providing health care benefits, that they are participants or beneficiaries of that plan as those terms are defined in 29 U.S.C. § 1132(a)(1), and that plaintiffs' claims arise pursuant to 29 U.S.C. § 1001, et seq., the statute commonly known as ERISA. The major underlying event giving rise to the litigation appears to be plaintiff Julie Anderson's fall from a horse which gave rise to two significant surgical procedures performed on Ms. Anderson, an ankle replacement performed on February 19, 2003, and a stimulator implant performed on April 24, 2002. The amended complaint sets out three claims for relief: (1) failure to provide requested information in violation of 29 U.S.C. § 1132(c)(1); (2) breach of contract; and (3) breach of fiduciary duty.
Doc. 16.
Doc. 18.
Defendant does not concede the reason for the surgeries was the fall from the horse. Plaintiffs contend at various places in their motion papers that they are seeking damages associated with health care claims made by plaintiffs in addition to those made for the two surgeries themselves. The court does not resolve those uncertainties here.
Doc. 16 at pp. 6-9.
Plaintiffs commenced this action on April 15, 2004, purporting to represent themselves and all others similarly situated. Nevertheless, they have not yet filed a motion seeking to have the case certified as a class action.
Plaintiffs served defendant with certain discovery requests dated August 6, 2004. Defendant responded on September 8, 2004, in a response which interposed objections to some of the requests and provided answers to others. The failure to fully respond prompted the motion at docket 23. Thereafter, defendant moved for summary judgment at docket 25. Instead of opposing the motion, plaintiffs sought relief under Rule 56(f) based on an alleged inability to respond to the motion for summary judgment.
This court has jurisdiction pursuant to 28 U.S.C. § 1331.
III. RULE 56(f) STANDARD
When a party called upon to oppose a motion for summary judgment cannot present affidavits setting out facts essential to the opposition, Rule 56(f) provides that the party may instead file affidavits showing why the court should refuse the motion for summary judgment or continue determination of the motion to allow the party requesting relief more time to obtain substantive affidavits or to complete further discovery. Earlier this year, the Ninth Circuit summarized the principles a court should apply when a party seeks relief under Rule 56(f):
To prevail under this Rule, parties opposing a motion for summary judgment must make "(a) a timely application which (b) specifically identifies (c) relevant information, where there is some basis for believing that the information sought actually exists." VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986). "The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Chance v. Pac-Tel Teletrac, Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir. 2001). "The district court does not abuse its discretion by denying further discovery [. . . .] if the movant fails to show how the information sought would preclude summary judgment." Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990) (citations omitted).
Teamsters Local 175 505 Pension v. Clorox, 353 F.3d 1125, 1129-30 (9th Cir. 2004).
The provisions of Rule 56(f) will be applied pursuant to the preceding principles articulated by the Ninth Circuit in deciding the motion at docket 30. Assertions made by counsel which are not supported by an affidavit will not be considered. For example, the assertion in plaintiffs' reply memorandum that a declaration supporting the motion for summary judgment includes false statements is not addressed in this order, because there is no affidavit to support it, much less an affidavit that meets the requirements of Rule 56(f) as those requirements have been explained by the court of appeals.
IV. DISCUSSION
A. The Underlying Summary Judgment MotionIt is helpful to examine the bases for defendant's motion for summary judgment in order to assess the adequacy of plaintiffs' Rule 56(f) motion. The motion for summary judgment makes three major contentions. The first is that the class action claims must be dismissed because plaintiffs are not members of the class (more specifically, any of the four subclasses) which they purport to represent, and because the claims are of a sort not appropriate for class action litigation. The second is that all of plaintiffs' state law claims are pre-empted by ERISA. The third — which is briefed in connection with defendant's attempt to show that plaintiffs cannot act as class representatives for one of the subclasses — is that defendant is entitled to judgment as a matter of law on plaintiffs' claim pursuant to 29 U.S.C. § 1132(c)(1) that defendant failed to provide requested information. There is a minor contention also which is that if summary judgment is not granted, plaintiffs' jury demand should be struck.
B. The Class Action Claims
In the Amended Complaint, plaintiffs describe the class of persons they seek to represent in general terms as the set of persons who within the last three years were reimbursed by defendant pursuant to an Alaska employer related group health plan in amounts lower than the actual charges incurred because defendant used allowable charge or reasonable allowance methodology. Plaintiffs subdivide this set into four subsets consisting of (1) persons whose reimbursement was made more than 30 days after the claim was submitted, (2) persons who requested a database from defendant but did not get it within 30 days, (3) persons who requested other documents upon which the reimbursement was based but did not get the documents within 30 days, and (4) persons who requested an explanation of how such databases work but did not receive the explanation within 30 days.
Doc. 16 at ¶ 24.
Id.
Defendants contend that under applicable law, plaintiffs must be members of each class they seek to represent. This is a purely legal argument to which plaintiffs can respond without the need for affidavits. Defendant then asserts that plaintiffs are not members of any of the subclasses.
1. Subclass of Those Not Reimbursed Within 30 Days
As to the first subclass, defendant takes the position that it paid the charges associated with the two surgical procedures within 30 days from the date the requests for reimbursement were submitted. To establish this point, defendant relies on the declaration of Claudia Nelson. In support of their request for relief, plaintiffs have provided two affidavits from their lawyer. The first, referred to hereinafter as the Shoup Affidavit, is substantive, and the second serves to authenticate a document attached to the affidavit, specifically a spreadsheet showing payments defendant made to or on behalf of plaintiffs.
According to defendant, there were two submitted charges for which reimbursement was denied, and for which the denials took more than 30 days, but defendant asserts that denied claims fall outside the subclass identified by plaintiffs. Whatever its merits, that assertion as to the nature of the subclass identified by plaintiffs can be addressed without the need for affidavits.
Signed original is at doc. 29.
Affidavit of David Shoup dated November 1, 2004, attached to doc. 30.
Affidavit of Counsel [David Shoup] dated October 19, 2004, attached to doc. 30. The spreadsheet does not show the date that requests for reimbursement were received, nor does it show the date reimbursement payments were made. What is does show for each claim is the claim number, the service provided date, the provider's name, the procedure code, and several financial details including the billed amount, the allowed amount, and the paid amount.
The Shoup Affidavit states that plaintiffs cannot respond to this aspect of the summary judgment motion because defendant did not properly respond to Interrogatory No. 4 and Request for Production No. 13. The response was served prior to the filing of the summary judgment motion. The implication is that the inadequate response by defendant has made it impossible for plaintiffs to respond with evidence sufficient to rebut the argument in the summary judgment motion that plaintiffs do not fall within the first subclass they seek to represent.
Interrogatory No. 4 asked defendant to state for each health care claim submitted by plaintiffs the (1) amount of the charge, (2) the date the claim was received, (3) the amount paid, and (4) the amount not paid, and why it was not paid. It did not ask for the date the payment was made. Defendant responded by indicating that Explanation of Benefits documents for the claims were available for inspection and copying and by providing a spreadsheet showing considerable information about each of numerous claims, but not the date the claim was received. Request for Production No. 3 sought production of data in electronic form, but without showing a patient's or insured's name (other than plaintiffs' names), for all members of the putative class showing the date the claim was received, the amount of the claim, the amount paid, and the date paid. The response was an objection on several grounds. For present purposes, it may be noted that the only relevance of this request is that it cures the omission from Interrogatory 4 of a request for the date payments were made to or on behalf of plaintiffs.
Assuming the information in the Explanation of Benefits documents would provide the information requested but missing from the spreadsheet and would otherwise confirm the summary of information in the spreadsheet, this type of response would be sufficient under FED. R. CIV. P. 33(d). There is some reason to believe that the Explanation of Benefits forms would not provide the requested information. See Exhibit 3 to doc. 32 which Mr. Maki argues in the reply memo is a representative Explanation of Benefits form. The exhibit is not, however, authenticated by an affidavit from Mr. Maki or anyone else. In any event, the court is not here addressing the merits of the motion at docket 23 which assails the adequacy of the discovery responses.
The major objection was that discovery as to class members was premature, but there was also an objection on grounds that the request was unduly burdensome as might be the case where a request is made for electronic data in a very specific format, a format which might not exist.
Unfortunately for plaintiffs, the Shoup affidavit is silent as to why the allegedly inadequate discovery is essential. There is no suggestion that the requested discovery would show that there was, in fact, any late payment on a claim relating to the Andersons. There is no assertion that either plaintiffs or any of their health care providers ever so much as voiced a concern over a payment taking more than 30 days. Plainly stated, the Shoup affidavit does not specifically identify relevant information necessary to defeat this aspect of the summary judgment motion and provide some basis for believing that such information exists.
2. Subclass of Those Who Requested A Database
Defendant contends that plaintiffs never requested a database and so they are not members of a subclass of persons who did so. To support the request for Rule 56(f) relief plaintiffs rely on the Shoup affidavit. That affidavit does not suggest a request for a database was made by or on behalf of plaintiffs. Yet, whether plaintiffs requested a database is surely something plaintiffs or whoever made the request on their behalf would know. If such a request had ever been made, an affidavit from the person making the request could be used to oppose the motion for summary judgment. In any case, the controlling consideration for present purposes is that the Shoup affidavit does not indicate that there is evidence of such a request in defendant's possession. It may be added that plaintiffs appear to implicitly concede that they did not ask for a database until after the lawsuit was filed and discovery undertaken.
See Doc. 30 at p. 8.
3. Subclass of Those Requesting Other Documents Not Timely Provided
Again, defendant's summary judgment argument is simple: plaintiffs did not request any other documents which were not provided within 30 days, so they are not members of a subclass of persons who did. To obtain relief under Rule 56(f), plaintiffs again rely on the Shoup affidavit. It is noteworthy that plaintiffs or their agent must surely know whether a request was made for other documents. The requestor should also have at least some idea of how long it took to get a response. Yet, there is no affidavit which sets out the existence of a request for which there is some recollection that the response was untimely. There is only the Shoup affidavit, and it does not meet the relevant criteria.
4. Subclass of Those Requesting an Explanation Not Given in 30 Days
Defendant's argument as to this subclass is that plaintiffs were given an adequate explanation of how the database worked within 30 days. Whether that is an accurate description of what happened or not isn't the issue here. The issue is whether plaintiffs have presented an affidavit which supports an award of relief under Rule 56(f). There is no doubt that plaintiffs have the request made by Todd Anderson for information as well as defendant's response, for copies of these documents are attached to the summary judgment motion as exhibits. From these plaintiffs can determine whether the response was made timely. There is also no doubt that plaintiffs now have a very detailed explanation of how defendant calculates the payment to be made on claims, for this is laid out in detail in the declaration of John Limm which accompanies the summary judgment motion at docket 25. It is also evident from the discussion in their papers that plaintiffs have a copy of the insurance policy. To determine whether or not the response to Mr. Anderson's inquiry was accurate, plaintiff should compare the response with the explanation given by Mr. Limm and with the insurance policy. There is nothing in the Shoup affidavit which explains why something more is needed to oppose defendants' assertion that its response was timely and adequate. The affidavit is insufficient under the principles governing the application of Rule 56(f).
Doc. 25, exhibits I and J.
Shoup affidavit at ¶ 5.
5. Defendant's Assertion That Class Action Is Not Appropriate
To show that a class action is inappropriate, defendant first argues that as a matter of law ERISA provides no remedy for a procedural violation of the type plaintiffs would litigate on behalf of the four subclasses, unless the defendant (1) did not substantially comply with the procedural requirement and (2) the particular plan beneficiary suffered substantial harm or there was a substantial violation of ERISA in his or her case. Defendant then contends that as a matter of law, the required inquiry must necessarily be done on a case-by-case basis rendering such claims inappropriate for class certification. Whether or not that is an accurate statement of the law, it is evident that any opposition to such a purely legal argument requires no factual discovery.
B. ERISA Pre-emption
In its motion for summary judgment, defendant contends that all of plaintiffs' state law claims are pre-empted by ERISA. This appears to be a purely legal question. Plaintiffs have conceded that they are not seeking relief under Rule 56(f) with respect to the ERISA pre-emption argument.
Doc. 32 at p. 8.
C. The § 1132(c)(1) Claim
This claim is based on the premise that defendant failed to respond properly to the request for information made by Todd Anderson. This subject was addressed in subsection A. 4. above. For the reasons given there, the court concludes that the Shoup affidavit does not support Rule 56(f) relief.
D. The Jury Trial Issue
Plaintiffs concede that they are not seeking relief under Rule 56(f) with respect to defendant's argument that they are not entitled to a trial by jury.
Id.
V. CONCLUSION
For the reasons set out above, the court finds that plaintiffs have not established an entitlement to relief under Rule 56(f). However, plaintiffs should have an opportunity to respond to the summary judgment motion. Therefore, it is ORDERED:1. The motion at docket 30 is DENIED.
2. Plaintiffs shall have until December 30, 2004, in which to serve and file a response to the motion for summary judgment at docket 25. (This date was selected in consideration of the fact that the court's fiscal circumstances have so diminished its work force, that there are often significant delays in getting orders docketed and distributed.)
3. Defendant may file a reply to the opposition within the time provided by D.Ak.LR 7.1(e) (the court's lack of funds would have no bearing on plaintiffs' service of their opposition, the event which triggers the time for the reply.)