Opinion
CV 22-01217-RSWL-MRWx
06-03-2022
BEVERLY HILLS REGIONAL SURGERY CENTER, L.P., Plaintiff, v. GROUP HOSPITALIZATION AND MEDICAL SERVICES, INC.; and DOES 1-10, Defendants.
ORDER RE: DEFENDANT'S MOTION TO DISMISS [13] AND PLAINTIFF'S MOTION TO AMEND COMPLAINT [15]
HONORABLE RONALD S.W. LEW SENIOR U.S. DISTRICT JUDGE
Plaintiff Beverly Hills Regional Surgery Center, L.P. (“Plaintiff”) brings this Action against Defendant Group Hospitalization and Medical Services, Inc. d/b/a/ CareFirst BlueCross BlueShield (“Defendant”), alleging claims for fraud, negligent misrepresentation, promissory estoppel, and violation of the Employee Retirement Income Securities Act of 1974 (“ERISA”). Currently before the Court are Defendant's Motion to Dismiss [13] and Plaintiff's Motion for Leave to File a Second Amended Complaint (“Motion for Leave to Amend”) [15]. Having reviewed all papers submitted pertaining to these Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS Defendant's Motion to Dismiss and DENIES Plaintiff's Motion for Leave to Amend.
I. BACKGROUND
A. Factual Background
Defendant is incorporated and has its principal place of business in the District of Columbia. Decl. of Kim Rothman in Supp. of Def.'s Mot. to Dismiss (“Rothman Decl.”) ¶ 5, ECF No. 13-1. Defendant insures businesses that are incorporated in the District of Columbia, as well as portions of Maryland and Virginia. Id. ¶¶ 5, 8. Defendant also functions as a third-party administrator for certain self-funded health plans located in those service areas. Id. ¶ 9. In this role, Defendant does not insure the health plan or retain the insurance risk, but it provides administrative services to the employer from within its home territory in exchange for an administrative fee. Id. Defendant does not receive premiums from the plan or plan participants when acting as a third-party administrator. Id. ¶ 10.
Plaintiff is a medical provider organized under the laws of California. First Am. Compl. (“FAC”) ¶ 1, ECF No. 9. On April 20, 2019, Plaintiff provided medical services to Patient KH. Id. ¶ 29. Patient KH was enrolled in a self-funded employee benefit plan (“Plan”) for which Defendant served as a third-party administrator. Rothman Decl. ¶¶ 28, 30. The plan was sponsored by its employer group, Arctic Slope Regional Corporation Federal Holding Company (“ASRC”). Id. ¶ 28. At the time that Plaintiff provided services to Patient KH, Plaintiff was an out-of-network provider. Id. ¶ 25.
About two months before the procedure, Plaintiff's employee called Defendant to inquire about Patient KH's payment responsibility versus Defendant's. FAC ¶¶ 3032. Defendant responded that Patient KH's deductible was $800, that Patient KH's maximum out-of-pocket expense was $4,000, and that Patient KH had paid $0 to date for that calendar year. Id. ¶ 33. Defendant represented that payment for certain procedures was typically based on the usual, reasonable, and customary cost for such procedures and not on the Medicare fee schedule. Id. ¶¶ 34-37. Defendant did not reference any term of the Plan that would cause a denial of coverage or a limitation of payment on the services provided to Patient KH. Id. ¶¶ 39-40. However, at the time of this call, Defendant allegedly had access to information that contradicted its representations, and Defendant knew that it would in fact be making payments based on the Medicare fee schedule. Id. ¶¶ 41-43. Plaintiff was not provided with a copy of the Plan and thus relied on Defendant's representations. Id. ¶ 46.
Following the medical procedure, Plaintiff provided Defendant with a bill stating that Patient KH had assigned all rights to reimbursement for medical services to Plaintiff. Id. ¶ 50. Plaintiff provided Defendant with all required billing information, including a bill for $227,541.00. Id. ¶ 60. Plaintiff alleges that Patient KH's Plan required Defendant to pay the “Max Allowed Amount” based on Plaintiff's billed charge. Id. ¶ 54. However, Defendant instead made payment in the amount of $1,593.08 based on the Medicare fee schedule. Id. ¶¶ 57, 62. Plaintiff alleges that this payment was well below the payment required under the Plan and the payment that was promised during the phone conversation. Id. ¶ 63. Defendant allegedly continues to refuse to make the appropriate payment. Id. ¶ 64.
B. Procedural Background
Plaintiff filed its Complaint [1-2] in the Superior Court of California, County of Los Angeles, on December 29, 2021. Defendant removed [1] the Action to this Court on February 23, 2022. Plaintiff filed its FAC [9] on March 1, 2022, alleging claims against Defendant for: (1) fraud; (2) negligent misrepresentation; (3) promissory estoppel; and (4) recovery of benefits under 29 U.S.C. § 1132(a)(1)(B) (“ERISA claim”).
The FAC labels both the negligent misrepresentation claim and the promissory estoppel claim as the “Second Cause of Action” and labels the ERISA claim as the “Third Cause of Action.” See generally FAC. For purposes of clarity, this Order will refer to the promissory estoppel claim as the third cause of action and the ERISA claim as the fourth cause of action.
Defendant filed its Motion to Dismiss [13] on March 31, 2022. Plaintiff opposed [18] on April 19, 2022, and Defendant replied [19] on April 26, 2022. Plaintiff filed its Motion for Leave to Amend [15] on April 12, 2022. Defendant opposed [16] on April 19, 2022. Plaintiff did not reply to Defendant's Opposition.
II. DISCUSSION
A. Legal Standard
1. Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. 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) (quotation marks omitted). Dismissal is warranted for a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).
In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). However, the court need not accept as true allegations that contradict matters properly subject to judicial notice. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). While a complaint need not contain detailed factual allegations, a plaintiff must provide more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes dismissal of an action for lack of personal jurisdiction. Once a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Where the motion is “based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts” to survive dismissal. Id. (internal quotation marks omitted). The court may consider evidence presented in affidavits to assist in its determination of jurisdictional issues. Data Disc, Inc. v. Sys. Tech. Ass'n, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). The plaintiff cannot rely on the bare allegations of the complaint, but uncontroverted allegations must be taken as true, and conflicts between statements contained in the parties' affidavits must be resolved in the plaintiff's favor. Schwarzenegger, 374 F.3d at 800.
3. Leave to Amend
“The court should give leave to amend freely when justice so requires.” Fed.R.Civ.P. 15(a)(2). In the Ninth Circuit, “Rule 15's policy of favoring amendments to pleadings should be applied with ‘extreme liberality.'” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Against this liberal standard, the Court may consider “the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).
B. Analysis
1. Defendant's Request for Judicial Notice
“A court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. Accordingly, a court may judicially notice matters of public record but not the substance of such records if subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir. 2001) (stating that a court may take judicial notice of the fact that certain court records were filed but not of the truth of any facts stated therein). In ruling on a motion to dismiss, a court may also consider documents that a plaintiff's complaint necessarily relies on if the authenticity of the document is uncontested. Id. at 688.
Defendant requests that the Court take judicial notice of two documents: (1) the ERISA Plan documents provided by Defendant to ASRC; and (2) an order granting a motion to dismiss in another action. See generally Def.'s Req. for Judicial Notice, ECF No. 14. The Court GRANTS Defendant's first request because Plaintiff's FAC necessarily relies on the Plan documents, and Plaintiff does not dispute that the documents attached to Defendant's Motion are in fact the Plan documents. See Korman v. ILWU-PMA Claims Office, No. 2:18-cv-07516-SVW-JPR, 2019 WL 1324021, at *4-5 (C.D. Cal. Mar. 29, 2019). The Court also GRANTS Defendant's second request because the court order is a public record, and its existence is not subject to reasonable dispute. See Selane Prods., Inc. v. Cont'l Cas. Co., No. 2:20-cv-07834-MCS-AFM, 2020 WL 7253378, at *3 (C.D. Cal. Nov. 24, 2020).
2. Defendant's Motion to Dismiss
a. ERISA Claim
Participants in an ERISA plan may bring a civil action to recover benefits due to them under the terms of their plan. 29 U.S.C. § 1132(a)(1)(B). To state a claim for benefits under ERISA, a plaintiff must “allege facts that establish the existence of an ERISA plan as well as the provisions of the plan that entitle it to benefits.” Almont Ambulatory Surgery Center, LLC v. UnitedHealth Grp., Inc., 99 F.Supp.3d 1110, 1155 (C.D. Cal. 2015) (citation omitted). Thus, a plaintiff bringing “a claim for benefits under ERISA must identify a specific plan term that confers the benefit in question.” Id. (citation omitted).
The FAC alleges that Patient KH's Plan obligated Defendant to pay “the ‘Max Allowed Amount' or ‘Allowed Amount' and that said amount was determined based on [Plaintiff's] billed charge.” FAC ¶ 54. Thus, the Plan required Defendant to pay a percentage of all amounts billed by Plaintiff. Id. ¶¶ 60-61. However, Plaintiff fails to identify any term of the Plan that requires Defendant to base the Allowed Amount on the medical provider's billed charge. On the contrary, the Plan provides that the “Allowed Benefit” for a covered service performed by an out-of-network provider will be “based on the lower of the provider's actual charge or established fee schedule, which, in some cases, will be a rate specified by applicable law.” Rothman Decl. Ex. 1 (“Plan”) at 4, ECF No. 13-2 (emphasis added). This language gives Defendant an alternative to basing payment on the medical provider's billed amount. Because this language clearly contradicts Plaintiff's allegation, the Court need not accept the allegation as true. See Sprewell, 266 F.3d at 988.
Plaintiff fails to identify a term of the Plan that Defendant violated by paying only $1,593.08 to Plaintiff. Plaintiff alleges that Defendant's payment was based on the Medicare fee schedule, see FAC ¶ 57, but Plaintiff fails to explain how this violates the terms of the Plan. Plaintiff has therefore failed to meet its pleading burden for its ERISA claim. See Almont, 99 F.Supp.3d at 1159 (holding that plaintiffs bringing claims under § 1132(a)(1)(B) must allege that the terms of the plan provide a specific reimbursement rate for covered services and that defendant failed to reimburse plaintiff according to that reimbursement rate). Plaintiff argues that its claim should not be dismissed because “it is entirely possible that [Defendant] was obligated to pay based on Plaintiff's billed charge.” Pl.'s Opp'n to Mot. to Dismiss 13:6-8. But the mere possibility of a Plan violation is too speculative to satisfy the Iqbal and Twombly pleading standards. See Simi Surgical Ctr., Inc. v. Conn. Gen. Life Ins. Co., No. 2:17-cv-02685-SVW-AS, 2018 WL 6332285, at *3 (C.D. Cal. Jan. 4, 2018) (finding ERISA claim deficiently pleaded where plaintiff failed to identify the plan terms and conditions purportedly breached).
Plaintiff cannot evade its pleading burden based on Defendant's failure to provide Plaintiff with Plan documents before Plaintiff filed the FAC. As acknowledged in Almont, representations made by Defendant over the phone may be relevant to an estoppel or fraud claim but “are irrelevant as to whether coverage existed under the terms of the Plan[].” 99 F.Supp.3d at 1159. Because Plaintiff fails to identify a Plan term that Defendant violated, Plaintiff's ERISA claim must be dismissed. The Court GRANTS Defendant's Motion as to Plaintiff's fourth cause of action.
b. Personal Jurisdiction
Defendant asserts that the Court lacks personal jurisdiction over Defendant with respect to Plaintiff's first three causes of action. See generally Def.'s Mot. to Dismiss, ECF No. 13. Plaintiff counters that the Court has specific personal jurisdiction over Defendant for all claims. Pl.'s Opp'n to Mot to Dismiss 4:11-12. Alternatively, Plaintiff argues that the Court has pendent personal jurisdiction over Defendant based on the nationwide service of process provided under ERISA. Id. at 11:7-9. Because Plaintiff's ERISA claim is dismissed, the Court does not address whether that claim warrants the exercise of pendent personal jurisdiction. See United States v. Botefuhr, 309 F.3d 1263, 1274 (10th Cir. 2002). Accordingly, the Court considers whether Plaintiff has established specific personal jurisdiction over Defendant for its state law claims.
A court may assert specific jurisdiction over a claim for relief that arises out of a defendant's forum-related activities. Rano v. Sipa Press, Inc., 987 F.2d 580, 588 (9th Cir. 1993). Specific personal jurisdiction is established if a plaintiff can show: (1) the defendant has performed some act or transaction within the forum or purposefully availed himself of the privileges of conducting activities within the forum; (2) the plaintiff's claim arises out of or results from the defendant's forum-related activities; and (3) the exercise of jurisdiction is reasonable. Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017). The plaintiff bears the burden of satisfying the first two elements. Id. “If the plaintiff meets that burden, the burden shifts to the defendant to present a compelling case that the exercise of jurisdiction would not be reasonable.” Id. at 1068-69 (internal quotations marks omitted).
As for the first element, a purposeful availment analysis is most often used in suits sounding in contract, while a purposeful direction analysis is most often used in suits sounding in tort. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). However, cases that primarily sound in contract are typically analyzed under only the purposeful availment analysis. Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990); HK China Grp, Inc. v. Beijing United Auto. & Motorcycle Mfg. Corp., 417 Fed.Appx. 664, 665-66 (9th Cir. 2011). Here, Plaintiff's claims sound primarily in contract because the representation giving rise to the alleged fraud is the same representation that gives rise to Plaintiff's claim for promissory estoppel. Thus, the Court applies only the purposeful availment analysis here.
A court has personal jurisdiction over a defendant only where the defendant has “purposefully availed himself of the privilege of doing business in a forum state . . . such as [by] executing or performing a contract there.” Id. at 802. However, the existence of a contract between plaintiff and defendant does not automatically establish minimum contacts in the plaintiff's home forum; rather, there must be “actions by the defendant himself that create a substantial connection with the forum State.” Picot, 780 F.3d at 1212 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). In other words, the defendant must have a relationship to the forum state beyond its relationship to the plaintiff who resides there. Id. at 1212-13. “A defendant must have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.” Id. at 1212.
The FAC states that Defendant is licensed to do business in California as an insurer or administrator of insurance. FAC ¶ 2. It alleges that Patient KH entered into a valid insurance agreement with Defendant that required Defendant to pay for healthcare expenses incurred by Patient KH. Id. ¶ 7. On February 26, 2019, Plaintiff allegedly called Defendant to confirm the rate Defendant usually pays for certain covered services, and Defendant did not indicate that its payment in this case would be any different from its typical payment percentage. Id. ¶¶ 34-40.
Defendant, however, provides evidence that its relationship to Patient KH is more attenuated than the FAC indicates. See Healthcare Ally Mgmt. of Cal., LLC v. Blue Cross Blue Shield of Minn., No. CV 16-7042-DMG (AFMx), 2017 WL 7201870, at *6 (C.D. Cal. July 27, 2017) (stating that jurisdictional allegations were not entitled to a presumption of truth where defendant presented contradictory evidence supported by declaration). Indeed, Defendant is not Patient KH's insurer and did not enter into an insurance agreement with Patient KH directly. See Plan at 2 (“[Defendant] provides administrative claims payment services only.”); Rothman Decl. ¶¶ 27-30. Rather, Patient KH was enrolled in a self-funded employee benefit plan sponsored by ASRC, and Defendant has never received any payments from or on behalf of Patient KH. Rothman Decl. ¶ 31. Defendant did not direct Patient KH to obtain services from Plaintiff. Id. ¶ 33. Defendant's only role as the third-party administrator of the Plan is to provide claim administrative services to ASRC in exchange for an administrative fee. Id. ¶ 30. Defendant's role in overseeing a Plan that a California resident happens to be a member of is insufficient evidence of purposeful availment. See, e.g., Healthcare Ally Mgmt. of Cal., LLC v. Blue Cross Blue Shield of Minn., 787 Fed.Appx. 417, 418 (9th Cir. 2019).
The alleged representations made by Defendant over the phone are also insufficient to establish purposeful availment. See Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985) (internal quotation marks and citation omitted) (“Ordinarily use of the mails, telephone, or other international communications simply do not qualify as purposeful activity invoking the benefits and protection of the forum state.”). Plaintiff argues that Defendant subjected itself to jurisdiction in California by affirmatively promising to pay Plaintiff for the services sought by Patient KH, but the FAC does not allege that Defendant specifically promised to pay for services sought by Patient KH. See FAC ¶¶ 30-37. Even if it did, the Court finds that Defendant did not purposefully avail itself of the benefits of California simply by promising to pay for covered services that Plaintiff happened to seek in California. See Hunt v. Erie Ins. Grp., 728 F.2d 1244, 1248 (9th Cir. 1984) (“The mere fact that [defendant] communicated with [plaintiff] in the state, and may have committed a tort in the exchange of correspondence, does not show that [defendant] purposefully availed itself of the privilege of conducting business in California.”); see also Women's Recovery Ctr., LLC v. Anthem Blue Cross Life & Health Ins. Co., No. 8:20-cv-00102-JWH-ADSx, 2022 WL 757315, at *11 (C.D. Cal. Feb. 2, 2022); Aton Ctr., Inc. v. CareFirst Blue Cross BlueShield, 2020 WL 4464482, at *7 (S.D. Cal. Aug. 3, 2020). This is particularly true given Defendant's lack of control over who becomes a member of the Plan and where those members seek services. The Court cannot base jurisdiction on the unilateral activity of another who decides to seek services in California. See Hunt, 728 F.2d at 1248.
In sum, Plaintiff has failed to establish that Defendant has purposefully availed itself of the privilege of conducting business in California. The Court therefore GRANTS Defendant's Motion to Dismiss for lack of personal jurisdiction.
3. Plaintiff's Motion for Leave to Amend
While “leave to amend shall be freely given when justice so requires, it is not to be granted automatically.” In re Western States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (internal quotation marks and citation omitted). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Accordingly, leave to amend may be denied on futility grounds where a proposed amendment would be subject to dismissal. Starlight Cinemas v. Regal Ent. Grp., No. CV 14-5463-R, 2015 WL 12748633, at *1 (C.D. Cal. Feb. 4, 2015) (citing Carrico v. City & Cnty. of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011)).
Defendant argues that Plaintiff should not be permitted to amend its complaint because the proposed Second Amended Complaint (“SAC”) does not cure the FAC's deficiencies, and amendment would therefore be futile. See generally Def.'s Opp'n to Mot. to Amend, ECF No. 16. Plaintiff provided no substantive argument in its Motion as to why its proposed amendment cures the deficiencies of the FAC and failed to file a Reply in response to the arguments raised by Defendant. The Court concludes that the proposed SAC fails to cure the deficiencies of both the ERISA claim and the Court's personal jurisdiction. The Court therefore DENIES Plaintiff's request for leave to amend its complaint.
a. ERISA Claim
As relevant to the ERISA claim, Plaintiff's proposed SAC adds the exact language from the Plan that defines “Allowed Benefit” as the lower of either the medical provider's actual charge or the established fee schedule. See Stieglitz Decl. in Supp. of Mot. to Amend Ex. A (“Proposed SAC”) at 12-13, ECF No. 15-2. However, the proposed SAC still fails to explain how Defendant's payment violates this Plan language. For the reasons state above, Plaintiff fails to satisfy its burden for pleading an ERISA violation. Allowing amendment on this basis alone would be futile and would result in dismissal.
b. Personal Jurisdiction
Plaintiff includes facts in the proposed SAC that presumably attempt to establish personal jurisdiction over Defendant in two new ways, neither of which are persuasive. First, Plaintiff adds ASRC as a defendant and alleges that nearly all of Defendant's acts were committed on behalf of ASRC, a foreign company registered to do business in California. See Proposed FAC at 2, 9-14. Second, Plaintiff includes facts about a second phone conversation it had with Defendant on April 15, 2019. Id. at 10.
Plaintiff seems to include facts establishing an agency relationship between Defendant and ASRC for the purpose of imputing any jurisdiction the Court may have over ASRC to Defendant. The Court has found no authority to support such a theory. While it is well established that the actions of an agent are attributable to the principal for purposes of specific jurisdiction, see Sher, 911 F.2d at 1362, it does not follow that a court's jurisdiction over a principal should be imputed to the agent based on the mere fact of the agency relationship. Rather, “jurisdiction over each defendant must be established individually.” Id. at 1365 (rejecting the notion that jurisdiction over a partnership established jurisdiction over the partners because “jurisdiction depends only upon each defendant's relationship with the forum”). Thus, allowing Plaintiff to add ASRC and allege an agency relationship for the purpose of establishing personal jurisdiction over Defendant would be futile.
The SAC also seeks to add facts about a second phone call Plaintiff made to Defendant on April 15, 2019, during which Defendant confirmed that the procedures sought by Patient KH “were authorized” and that no “pre-certification or pre-determination was needed.” Proposed SAC at 10. These additional facts do not establish Defendant's purposeful availment because, as stated above, Defendant cannot be subjected to this Court's jurisdiction simply because of its telephonic confirmation that certain services were covered by a self-funded plan for which it serves only as an administrator. Moreover, Defendant did not initiate these calls and Plaintiff does not allege that Defendant ever affirmatively promised to pay a certain amount for Patient KH's procedures. See Healthcare Ally, 787 Fed.Appx. at 418 (finding insufficient evidence of purposeful availment where defendant did not initiate phone calls with medical provider and “did not promise to pay for the patients' medical services . . . but instead merely confirmed that the patients were covered by the policies”). Therefore, allowing Plaintiff to amend its claims to include these facts would also be futile.
In sum, the proposed SAC does not include any facts that would cure the FAC of the deficiencies outlined in this Order. Amendment would therefore be futile, and the Court DENIES Plaintiff's Motion for Leave to Amend on this basis.
III. CONCLUSION
Based on the foregoing, the Court GRANTS
Defendant's Motion to Dismiss. The Court DENIES
Plaintiff's Motion for Leave to Amend because Plaintiff's proposed SAC fails to cure the deficiencies outlined in this Order.
IT IS SO ORDERED.