Opinion
21-CV-4796 (GHW) (KHP)
12-07-2023
Gordon Surgical Group, P.C. et al., Plaintiffs, v. Empire Healthchoice HMO, Inc. et al., Defendants.
TO: THE HONORABLE GREGORY H. WOODS, United States District Judge
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
KATHARINE H. PARKER United States Magistrate Judge
This action is brought by three affiliated general surgery providers, Gordon Surgical Group, P.C., Premier Medical Associates of the Hudson Valley LLP, and Northern Westchester Surgical Associates, LLP (collectively, “Plaintiffs”), challenging the refusal of Empire Healthchoice HMO, Inc. and Empire Healthchoice Assurance, Inc. (collectively, “Defendants”), to fully reimburse Plaintiffs for surgical services they provided to Defendants' members and subscribers (“Members”) from 2015 through 2020 (the “Relevant Period”). Plaintiffs seek redress under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”) and state law.
Before me for a Report and Recommendation is Defendants' Motion to Dismiss the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, I respectfully recommend that the motion be GRANTED.
BACKGROUND
For purposes of this motion, the Court assumes all facts alleged in the SAC are true. Dane v. UnitedHealthcare Ins., 974 F.3d 183, 188 (2d Cir. 2020).
Plaintiffs were three affiliated general surgery medical providers based in the Hudson Valley, New York. (SAC ¶ 1.) During the Relevant Period, Plaintiffs provided surgical services to patients with emergency medical conditions who required surgical treatment at various Hudson Valley hospitals, including patients who are Members of Defendants' health insurance plans (the “Plans”) or beneficiaries of those Plans. (Id. ¶¶ 2, 31.)
Plaintiffs' medical practice closed in approximately December 2021. (See ECF No. 54.)
Plaintiffs have not joined Defendants' “provider networks,” and are therefore considered “out-of-network” or “non-participating” providers. (Id. ¶¶ 10-11.) Pursuant to Defendants' agreements with their Members, when Members receive treatment from out-ofnetwork providers such as Plaintiffs, Defendants are obligated to reimburse the Member or provider at an out-of-network rate that is established by the relevant Plan. (Id. ¶ 13.) Plaintiffs routinely received authorization from Defendants to provide medical services to Members and received assignments of benefits from Members to permit Plaintiffs to bill Defendants directly and receive payment from them. (Id. ¶ 14.) However, Defendants regularly failed to reimburse Plaintiffs - in many cases, at all, and in other cases, at the appropriate rate - for surgical services that Plaintiffs provided to Members. (Id. ¶ 15.)
Through this litigation, Plaintiffs seek full reimbursement of their charges for medically necessary health care services provided to 126 patients (the “Patients”), as set forth in 291 individual medical claims (the “Medical Claims”). (Id. at Ex. 1.) The Medical Claims at issue are governed by 72 different Plans. (Supplemental Sirota Decl. Ex. B, hereinafter “Exhibit B.”)
Although Paragraph 22 of the SAC states that there are 130 Patients and 299 Medical Claims at issue, Exhibit 1 to the SAC, which lists all claims at issue, lists 126 Patients and 291 Medical Claims. Defendants noted this discrepancy in their motion to dismiss, and Plaintiffs did not file an updated exhibit listing any additional patients or claims. Accordingly, the Court relies on Exhibit 1 for the purposes of this Motion.
The Supplemental Declaration of Valerie Sirota (“Sirota Decl.) is available at ECF No. 77.
Of the 72 different Plans at issue, the majority are governed by ERISA (hereinafter, “ERISA Plans”), but certain Plans are not governed by ERISA (hereinafter, “non-ERISA Plans”).Of the 291 Medical Claims at issue, 208 Medical Claims pertaining to approximately 85 different Patients are governed by ERISA Plans. The remaining 83 Medical Claims, pertaining to approximately 40 different Patients, are governed by non-ERISA Plans. (Id.; Opp. 20.) Twenty of the 291 Medical Claims, pertaining to 10 different Patients, are governed by 6 Plans for which Defendants assert they are not the plan itself or the “plan administrator.” According to Plaintiffs, five of these are ERISA Plans and one is a non-ERISA Plan.
ERISA governs health plans that are established and/or sponsored by private employers, and does not cover plans established or maintained by governmental entities or churches, nor does it cover plans that are maintained solely to comply with applicable workers compensation, unemployment, or disability laws. ERISA also does not cover plans maintained outside the United States primarily for the benefit of nonresident aliens or unfunded excess benefit plans. See Employee Retirement Income Security Act (ERISA), U.S. Dep't of Labor, https://www.dol.gov/general/topic/retirement/erisa. The majority of non-ERISA Plans at issue in this case are Plans that are established and/or maintained by governmental entities. The parties do not dispute that 79 Medical Claims are governed by non-ERISA Plans.
The non-ERISA Plan is the Bedford Central School District Plan, and the ERISA Plans are the Laundry, Dry Cleaning Workers and Allied Industries Health Fund; Teamsters Local 210; Local 464A UFCW Union Welfare Fund; OUSDHP; and Hollow Metal Trust Fund.
Copies of the Plans are available on the docket at ECF No. 66, except as to those 6 Plans for which Defendants assert they are not the plan itself or the “plan administrator,” and 2 other Plans that Defendants were unable to find copies of. The parties agree that the Court may consider the Plan documents here, because these documents are integral to the SAC. See Pro. Orthopaedic Assocs., PA v. 1199 Nat'l Benefit Fund, 2016 WL 6900686, at *1 (S.D.N.Y. Nov. 22, 2016), aff'd, 697 Fed.Appx. 39 (2d Cir. 2017).
For each Patient, Plaintiffs obtained Plan information before or during treatment indicating that the Patient was covered by one of Defendants' Plans that permitted the Patient to be treated by an out-of-network provider and provided that Defendants would reimburse the cost of such services. (SAC ¶¶ 33-37.) In connection with non-emergency treatment Plaintiffs provided to Members, Plaintiffs obtained pre-authorizations from Defendants, which often were confirmed in writing by Defendants. (Id. ¶¶ 48-49.) The Patients always executed assignments of benefits that purported to assign, among other things, the benefits that the Patients were entitled to receive under their Plan. (Id. ¶¶ 50-53.) Pursuant to the terms of the assignments of benefits, Plaintiffs billed Defendants for the medical services they provided to Members. (Id. ¶ 54.) When submitting bills to Defendants, Plaintiffs informed Defendants that the Patients had authorized, and Plaintiffs had accepted, these assignments of benefits. (Id. ¶ 55.) However, in response to these bills, Defendants “paid Plaintiffs nothing or paid Plaintiffs far below the rate purportedly set forth by the Plans or state or federal law.” (Id. ¶ 56.)
Plaintiffs attempted to enter a meaningful dialogue with Defendants to obtain proper payment for outstanding Medical Claims, but these discussions were unsuccessful. (Id. ¶¶ 57-62.) Defendants have consistently refused to provide necessary information to Plaintiffs to help resolve these issues, including the reasons for the denial or underpayment of Medical Claims. (Id. ¶ 63.) However, Defendants have provided “vague letters and promises of proper payment” and “endless requests and re-requests for documents supporting the claims.” (Id. ¶ 64.) After Plaintiffs commenced this lawsuit, Defendants asserted that at least 38 of the Plans at issue contain anti-assignment provisions that preclude Members from assigning their rights to Plaintiffs. (Id. ¶ 67; Sirota Decl. Ex. B.) One hundred and twenty-six of the Medical Claims at issue are governed by Plans containing anti-assignment provisions. Of these, 84 are governed by ERISA Plans and 42 are governed by non-ERISA Plans. The SAC alleges that many of the antiassignment clauses contain applicable exceptions, or alternatively, that Defendants waived the terms of the anti-assignment clauses. (Id. ¶¶ 68-79.)
The SAC asserts seven causes of action. Count One asserts that Defendants breached the terms of its ERISA Plans by failing to reimburse Plaintiffs in violation of ERISA § 502(a)(1)(B), as codified in 29 U.S.C. § 1132(a)(1)(B), and 29 C.F.R. § 2590.715-719A(b)(3)(i)(A)-(C), and Plaintiffs seek to recover unpaid and underpaid benefits pursuant to ERISA § 502(a)(1)(B). Count Two asserts that Defendants have failed to provide a full and fair review of the benefit claims, to disclose information relevant to appeals, and to comply with applicable claim procedure regulations and seeks declaratory and injunctive relief to remedy these failures pursuant to ERISA § 502(a)(3), as codified in 29 U.S.C. § 1132(a)(3).
The remaining counts are asserted under state law with respect to all Medical Claims governed by all Plans. Count Three is for breach of express contract and asserts that Defendants breached their obligations to their Members under the Plans to properly pay Plaintiffs and that through the assignments of benefits Plaintiffs obtained the right to enforce the contracts between Defendants and Members. Count Four is for breach of implied contract and asserts that implied-in-fact contracts arose between Defendants and Plaintiffs regarding the provision of, and payment for, the health care that Plaintiffs provided to Members based on the parties' course of dealing and that Defendants breached their obligations under these implied contracts by failing to pay Plaintiffs. Count Five is for unjust enrichment and asserts that Defendants were unjustly enriched by not properly paying Plaintiffs. Count Six is for tortious interference with the contractual relationships that Plaintiffs maintained with Patients who were Defendants' Members. Count Seven is for breach of third-party beneficiary contract rights and asserts that Defendants are liable to Plaintiffs for breaching their contracts with Members. For their state law claims, Plaintiffs seek compensatory and punitive damages.
2. Procedural History
Plaintiffs filed the initial complaint in this action on June 1, 2021 and filed an Amended Complaint on February 25, 2022. (ECF Nos. 1, 35.) On April 14, 2022, the Court set the deadline for fact discovery as September 30, 2022, and scheduled a settlement conference to occur in October 2022. (ECF No. 41.) The parties then began to exchange documents, including relevant Plan documents and claim denial letters. On July 14, 2022, Plaintiffs provided Defendants with an amended list of Medical Claims.
On September 27, 2022, the parties submitted a letter stating that Defendants intended to move to dismiss the amended complaint and that the parties “agreed it would be most efficient to stay discovery until a decision is rendered on Defendants' motion to dismiss.” (ECF No. 47.) In lieu of staying discovery, the Court extended the fact discovery deadline to December 19, 2022. (ECF No. 48.) On October 19, 2022, following an unsuccessful settlement conference with the parties, the Court set a briefing schedule for the motion to dismiss. (ECF No. 49.) The Court subsequently adjourned that briefing schedule in light of Plaintiff's request to file an amended complaint. (ECF Nos. 53, 55, 57.) The court also granted the parties' request to extend the discovery deadline to January 13, 2023.
On February 3, 2023, Plaintiffs filed the SAC, attaching as Exhibit 1 a refined list of Medical Claims. (ECF No. 58.) Defendants filed the motion to dismiss and supporting papers on March 31, 2023. (ECF Nos. 63-66.) Defendants raise numerous arguments, discussed in detail below. In sum, Defendants argue that as to the 208 Medical Claims that are governed by ERISA Plans, Plaintiffs do not allege that they timely exhausted the administrative remedies available under the Plans before commencing this action and Plaintiffs fail to state claims for reimbursement under ERISA because they do not tie their demands to any specific Plan. Defendants also argue that Plaintiffs' second cause of action for denial of full and fair review -also pertaining to the 208 Medical Claims governed by ERISA Plans - fails because it is duplicative of the first cause of action. Additionally, Defendants argue that as to those 84 Medical Claims that are governed by ERISA Plans containing anti-assignment provisions, Plaintiffs lack statutory standing to assert claims under ERISA.
Although Defendants' briefing regarding statutory standing discusses 126 Medical Claims, this includes 42 Medical Claims not governed by ERISA Plans, but the statutory standing argument only applies to those claims that are governed by ERISA Plans.
Defendants further argue that approximately 85 of Plaintiffs' Medical Claims (45 of which are governed by ERISA Plans), are untimely under time-limitations provisions contained within the Plans and/or the applicable New York statute of limitations. As for 20 of the Medical Claims at issue, Defendants argue that Plaintiffs are pursuing claims against the wrong party because Defendants are not the Plan or claims administrator. As to Plaintiffs' state law claims, to the extent the state law claims pertain to ERISA Plans, Defendants argue these claims are preempted by ERISA because they specifically and repeatedly implicate, reference, and rely on the terms of the ERISA-governed Plans. Defendants also argue that as to the 42 non-ERISA Plans that contain anti-assignment provisions, Plaintiffs lack contractual standing to assert state law claims. Finally, Defendants argue that the state law claims are deficient because the SAC fails to properly plead the required elements of each cause of action.
Plaintiffs filed a memorandum of law opposing the motion on May 19, 2023, and Defendants filed their reply on June 16, 2023. (ECF Nos. 71, 76-78.) The Court held an oral argument on the motion on December 4, 2023.
LEGAL STANDARDS
For a complaint to survive a Rule 12(b)(6) motion to dismiss, the court must determine that the complaint contains “sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is considered plausible on its face “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. While detailed factual allegations are not required, the complaint must contain more than mere “labels and conclusions or formulaic recitation of the elements of a cause of action.” Id.
When considering a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cruz v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). Nevertheless, “threadbare recitals of the elements of a cause of action” that are supported by “conclusory” statements and mere speculation are inadequate and subject to dismissal. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation omitted).
APPLICATION
1. Counts One and Two: ERISA § 502(a) Claims
Count One of the SAC asserts that Defendants breached the terms of numerous ERISA Plans by failing to reimburse Plaintiffs for their medical services rendered in violation of ERISA § 502(a)(1)(B). ERISA § 502(a)(1)(B) provides that “a participant or beneficiary may bring an action ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” Plaintiffs assert they are entitled to have this Court undertake a de novo review of the issues raised in the SAC and award Plaintiffs unpaid and underpaid benefits. Plaintiffs also seek declaratory and injunctive relief to enforce the terms of the ERISA Plans and clarify Plaintiffs' rights to future benefits under the Plans.
Count Two of the SAC alleges that Plaintiffs are entitled to injunctive and equitable relief as a result of Defendants' failures to provide specific reasons for the denial or underpayment of the Medical Claims and to provide the specific Plan provisions relied on for the denials, as required by ERISA § 502(a)(3). ERISA § 502(a)(3) is a “catch-all” provision that “normally is invoked only when relief is not available” under § 502(a)(1)(B). Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 578-79 (2d Cir. 2006). Such a claim may be asserted “by a participant, beneficiary or fiduciary (A) to enjoin any act or practice [that] violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” ERISA § 502(a)(3).
Counts One and Two encapsulate 209 different Medical Claims, which are governed by over 40 different ERISA Plans. An ERISA claim “is the assertion of a contractual right.” Feifer v. Prudential Ins. Co. of Am., 306 F.3d 1202, 1210 (2d Cir. 2002) (citation omitted). Therefore, a plaintiff must refer to the plan itself to establish its right to relief under ERISA § 502(a). Pro. Orthopaedic Assocs., PA, 2016 WL 6900686, at *6. Defendants have asserted several grounds for dismissal of the ERISA claims, some of which apply to all of the Medical Claims governed by ERISA Plans, and others of which apply to sub-sets of Medical Claims. I begin with those arguments that are dispositive of all 209 Medical Claims pertaining to ERISA Plans, and then discuss Defendants' other arguments.
For all of the below arguments except for Section b(ii) below, I assume that Plaintiffs fall within the class of people authorized to sue under ERISA for all Medical Claims. Section b(ii) below discusses whether Plaintiffs in fact fall within the class of people authorized to sue under ERISA for some Medical Claims.
a. Plaintiffs Failed to Plead Exhaustion of Administrative Remedies as to all 209 Medical Claims
“ERISA requires both that employee benefit plans have reasonable claims procedures in place, and that plan participants avail themselves of these procedures before turning to litigation.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 222 (2d Cir. 2006). Exhaustion of administrative remedies is a prerequisite to pursuing an ERISA action, and where an ERISA claimant fails to allege that she exhausted administrative remedies, “the claim must be dismissed.” Greifenberger v. Hartford Life Ins. Co., 2003 WL 22990093 (S.D.N.Y. Dec. 18, 2003), aff'd, 131 Fed.Appx. 756, 758 (2d Cir. 2005). “Exhaustion in the context of ERISA requires only those administrative appeals provided for in the relevant plan or policy.” Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993). “[A] blanket assertion of exhaustion of administrative remedies in a complaint is insufficient to withstand a motion to dismiss.” Am. Med. Ass'n v. United Healthcare Corp., 588 F.Supp.2d 432, 450 (S.D.N.Y. 2008). Although exhaustion is an affirmative defense, courts “routinely dismiss” ERISA Section 502(a) claims on a 12(b)(6) motion to dismiss “where the plaintiff fails to plausibly allege exhaustion of remedies.” McFarlane v. First Unum Life Ins. Co., 2017 WL 3495394, at *3 (S.D.N.Y. Aug. 15, 2017) (citation omitted); see also Kesselman v. Rawlings Co., LLC, 668 F.Supp.2d 604, 609 (S.D.N.Y. 2009).
Here, the SAC alleges that, after “receiving no payment, or improperly low payments, for the medically necessary services” that Plaintiffs provided, Plaintiffs “attempted to enter a meaningful dialogue with Empire to obtain prompt and proper payment for all the outstanding claims. This dialogue included taking available appeals to challenge Empire['s] no or low reimbursement.” (SAC ¶¶ 57-58.) The SAC then provides two examples of Plaintiffs' attempts to deal directly with Defendants prior to bringing suit. It states:
For example, in connection with the emergency gall bladder surgery that Plaintiffs performed on Patient BS on September 6, 2016, Plaintiffs submitted an appeal to Empire on January 11, 2017 challenging Empire's initial refusal to provide any reimbursement for the services rendered. This appeal was unsuccessful.(Id. ¶ 59.) The SAC alleges that Plaintiffs then “engaged in extensive pre-suit rate negotiations with Empire in [an] attempt to obtain reasonable reimbursement for the services rendered to Patient BS,” which were also “unsuccessful.” (Id. ¶ 60.) As a second example, the SAC alleges that “in connection with the surgical services provided patient CO on December 7, 2019,
Plaintiffs submitted an appeal to Empire on February 10, 2020, challenging Empire's reimbursement decision. This appeal was unsuccessful.” (Id. ¶ 61.) The SAC alleges that Plaintiffs unsuccessfully “followed a similar pattern of attempted negotiations and appeals in connection with the services provided to all the Patients.” (Id. ¶ 62.)
However, even when discussing the two specific examples of Plaintiffs' purported exhaustion efforts, the SAC does not discuss the particular Plan's exhaustion requirements and procedure, whether Plaintiffs (or the Members/Patients) followed or completed that procedure, and whether Plaintiffs (or the Members/Patients) met the various requirements to complete the appeal process. Rather, Plaintiffs simply assert that they submitted one appeal to Empire and thereafter engaged in a “dialogue” with Empire.
As to Plaintiffs' first example, Patient BS's claim is governed by a non-ERISA plan, and therefore this Medical Claim is outside the realm of the Court's ERISA analysis. As to Plaintiff's second example, Patient CO's claim is governed by the PepsiCo plan, which provides a detailed overview of the Plan's specific administrative exhaustion requirements. (See O'Brien Decl. Ex. KK.) The Plan explains that the Member should make an internal claim for benefits by filing a written claim with the claims administrator at an address specified in the Plan. If the claim is denied, the Member must appeal the denial by submitting a written request for review to the claims administrator within 60 to 180 days (depending on the claim) of the date the Member received the claim denial notice. If that claim is denied, the Plan requires in some instances that the Member file a second-level internal appeal.
While the SAC alleges that Plaintiffs “submitted an appeal to Empire,” it does not allege that they (or the Member/Patient) followed the directives of the Plan in submitting that appeal.
The SAC does not allege, for example, that the Member filed the initial claim for benefits nor that any appeal was directed to the appropriate address as listed in the Plan, nor whether the second-level appeal was filed or excused. These allegations are insufficient to withstand a motion to dismiss as to Patient CO's claim. See, e.g., N. Jersey Plastic Surgery Ctr., LLC v. 1199SEUI Nat'l Benefit Fund, 2023 WL 5956142, at *6 (S.D.N.Y. Sept. 13, 2023) (complaint failed to allege exhaustion of administrative remedies where it did not specifically allege that plaintiff filed a first-level appeal within the 180-day timeframe set forth in the plan or a second-level appeal within the 60-day timeframe or that the appeal was made to the proper entity in writing); Kesselman, 668 F.Supp.2d at 609 (“ERISA complaints containing bald assertions that administrative remedies have been exhausted do not withstand a 12(b)(6) motion.”); Murphy Med. Assocs., LLC v. Yale Univ., 2023 WL 2631798, at *7 (D. Conn. Mar. 24, 2023) (plaintiffs failed to adequately plead exhaustion where they did not provide detail as to the relevant plans' exhaustion requirements nor whether they followed the relevant procedures); Neurological Surgery, P.C. v. Aetna Health Inc., 511 F.Supp.3d 267, 294 (E.D.N.Y. 2021) (allegations that plaintiffs attempted “to enter into a meaningful dialog” with defendants and filed “written appeals” on specific dates, repeated for each of the 200 claims, was insufficient to plead exhaustion for any claim).
All the more so, the broad allegation that Plaintiffs “followed a similar pattern of attempted negotiations and appeals in connection with the services provided to all the Patients” is certainly insufficient to withstand a motion to dismiss as to the remaining 205 Medical Claims that are governed by ERISA Plans. See Am. Medical Ass'n, 588 F.Supp.2d at 450 (dismissing ERISA claims that contained a “blanket assertion” of exhaustion of administrative remedies). The Plans involve varied and specific appeals procedures, including different methods, prerequisites, and time limitations for filing an appeal. (See generally O'Brien Decl.) The SAC does not specify the various requirements for exhaustion set forth in any Plan, nor does it allege that Plaintiffs followed the procedures set forth in the Plans. Thus, assuming that Plaintiffs are authorized to bring claims for benefits under the ERISA Plans at issue, Plaintiffs' allegations are “devoid of context and content” that would permit a reasonable inference that Plaintiffs (or the Members/Patients) followed the appeal procedures required by the Plans. Neurological Surgery, 511 F.Supp.3d at 294; see also, Antell v. United Healthcare Ins. Co. of N.Y., 2012 WL 13042822, at *2 (S.D.N.Y. Mar. 16, 2012) (allegations that plaintiff corresponded with the insurer via letters, calls, and submission of documents were insufficient to plead exhaustion because such correspondence did not meet the process set forth within the plan).
While the Court sympathizes with medical providers who are required to deal with the administrative nightmare of sorting through and complying with these various appeals processes, exhaustion of administrative remedies is necessary to state an ERISA claim.
Plaintiffs cite Neurological Surgery, P.C. v. Siemens Corp., 2017 WL 6397737 (E.D.N.Y. Dec. 12, 2017), in which the court found the plaintiffs had alleged sufficient facts to support exhaustion for purposes of a motion to dismiss. That case is distinguishable. The question in Siemens was whether the plaintiff alleged that its appeal was timely filed after the claim was denied when the complaint did not provide a date for the denial of the claim. The court found that allegations that the plaintiff filed the appeal on a certain date, and that the appeal was timely, were sufficient to plead that the complaint was timely filed. By contrast, Plaintiffs' allegations here are too threadbare to allow the Court to reach questions such as timeliness of the appeals within the confines of the various Plans' requirements, because the SAC provides no information as to any time requirements set forth in any Plan for bringing an appeal.
Plaintiffs argue that they do not need to plead the Plan requirements with specificity because the various Plans are “part of the administrative record.” (Opp. 16). The Court understands this to mean that the Plans were filed with the Court in connection with this motion. However, the fact that the Plans are available for the Court's review does not excuse Plaintiffs' pleading requirements. Moreover, Plaintiffs also have not alleged facts to show that their appeals (or those of the Members/Patients) followed any of the requirements set forth in the Plans, and this information is not available to the Court. Nothing in the SAC suggests that Plaintiffs (or the Members/Patients) appealed pursuant to the procedure set out in each ERISA Plan, and the Court lacks a basis to reasonably infer that said procedures were followed. See Neurological Surgery, 511 F.Supp.3d at 295.
Finally, Plaintiffs argue in the alternative that to the extent they did not adequately plead exhaustion, the exhaustion requirement should be excused as futile. While a plaintiff may be excused from exhausting administrative remedies where such exhaustion would be futile, the Second Circuit requires a “clear and positive showing” that proper exhaustion would be futile. Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 140 (2d Cir. 2000) (citation omitted). “To fall within the futility doctrine, claimants must show that it is certain that their claim will be denied on appeal, not merely that they doubt an appeal will result in a different decision.” Sibley-Schreiber v. Oxford Health Plans (N.Y.), Inc., 62 F.Supp.2d 979, 986 (E.D.N.Y. 1999) (citation omitted).
Plaintiffs have not shown futility because the SAC does not allege that Plaintiffs (or the Members/Patients) ever attempted to participate in the appropriate appeals processes provided by the various Plans. Rather, the SAC essentially alleges that Plaintiffs wrote letters and made calls that Defendants ignored. These communications do “not render futile further pursuit of [their] claims through the proper channels.” Neurological Surgery, 511 F.Supp.3d at 297; see also Antell, 2012 WL 13042822, at *3 (plaintiff failed to show that exhaustion would have been futile where she never followed the proper methods of exhaustion and submitted no other evidence of futility).
Plaintiffs cite to Sibley-Schreiber, 62 F.Supp.2d 979, in support of their futility argument, but that case is distinguishable. There, the plaintiffs challenged a company-wide policy that denied coverage to plan members who sought prescription Viagra, regardless of personal circumstances. Id. at 986-89. The plaintiffs engaged in numerous efforts to change the policy, but were repeatedly told that the policy was “not subject to exception or appeal.” Id. at 984, 987. Because there was no appeal process available to challenge the blanket policy, the court found that any appeal of individual denials of coverage would have been futile. By contrast, this case involves varied individual claims under Plans that do provide appeals procedures.
In sum, Plaintiffs have not plausibly alleged futility and have not excused their failure to plead exhaustion of the administrative remedies required by the ERISA Plans. Plaintiff's failure to properly plead exhaustion is fatal to the claims asserted in Counts One and Two of the SAC. Accordingly, I respectfully recommend that Counts One and Two be dismissed in their entirety.
Attached to this Report is a spreadsheet of all 291 of Plaintiff's Medical Claims and columns E and F list my recommendations for each Medical Claim. As to those 209 Medical Claims that I recommend be dismissed for failure to exhaust, Column E states: “Dismiss for failure to exhaust.”
b. Plaintiffs Failed to State an ERISA Claim
To state a claim under ERISA § 502(a)(1)(B), “a plaintiff must show that (1) the plan is covered by ERISA, (2) plaintiff is a participant or beneficiary of the plan, and (3) plaintiff was wrongfully denied [benefits] owed under the plan.” Bulovic v. Both, 14 F.Supp.3d 365, 390 (S.D.N.Y. 2014); see also Guerrero v. FJC Sec. Servs. Inc., 423 Fed.Appx. 14, 16 (2d Cir. 2011). To state a claim under ERISA § 502(a)(3), the plaintiff must meet the same pleading requirements, except that as to the second prong, the plaintiff must be a participant, beneficiary, or fiduciary of the plan. Bulovic, 14 F.Supp.3d at 390; see also Physicians Health Servs., 287 F.3d at 122 (upholding dismissal of suit under ERISA § 502(a)(3) for lack of standing where plaintiff was not a participant, beneficiary, or fiduciary).
Here, there is no dispute that the first element is met because 209 of Plaintiffs' Medical Claims are governed by ERISA Plans. However, Plaintiffs failed to properly allege the second element as to some ERISA Plan-governed Medical Claims, and failed to properly allege the third element as to all ERISA Plan-governed Medical Claims. This Report first discusses Plaintiffs' failure as to the third element because that failure impacts all of Plaintiffs' 209 ERISA Plan-governed Medical Claims.
i. Plaintiffs Failed to Adequately Plead they were Wrongfully Denied Benefits
The third element of an ERISA benefits claim is that the plaintiff was wrongfully denied benefits owed under the plan. Because a claim for benefits under ERISA is the assertion of a contractual right, a plaintiff must refer to the plan itself to establish its right to relief. Pro. Orthopaedic Assocs., 2016 WL 6900686, at *6. Defendants argue that the SAC fails to allege wrongful denial of benefits owed under any Plan because the SAC does not sufficiently tie Plaintiffs' demand for reimbursement to any specific Plan term.
The SAC alleges that the Plans at issue provide that, if a Member requires emergency care, such services “will be reimbursed by Empire, without regard for whether the provider who performed the emergency services was in-network or out-of-network,” and that most of the Plans at issue give members the right to seek medically necessary treatment from out-ofnetwork providers. (Id. ¶¶ 33, 43.) The SAC cites a handful of examples of the relevant Plan provisions. (Id. ¶¶ 34-37, 44-46.) The cited provisions state the rates at which covered services will be reimbursed. For example, the “Canon Plan” provides that “Covered Services received from an Out-of-Network Provider . . . will be reimbursed at 80% of the Maximum Allowed Amount.” (Id. ¶ 44.) The “HVH Plan” provides that “Covered Services rendered by the NonParticipating Provider will be paid as if they were provided by a Participating Provider.” (Id. ¶ 47.) The SAC suggests that most of the other Plans contain similar provisions. The SAC further alleges that after obtaining valid assignments from Patients, Plaintiffs submitted bills to Defendants for the services rendered, and these bills were either not paid at all or not paid in full, allegedly in breach of the terms of the relevant Plans. (Id. ¶¶ 56, 83-85.)
Plaintiffs attached as Exhibit 1 to the SAC a spreadsheet listing for each Medical Claim the service performed, the date of the service, the Plan that relates to the claim, the amount Plaintiffs billed, the amount (if any) Defendants paid, and the amount purportedly due. Plaintiffs are requesting 100% reimbursement for their bills. (Id. Ex. 1.) However, the spreadsheet and the SAC do not specify the relevant Plan provision that would entitle Plaintiffs to the requested relief for each Medical Claim. Therefore, while the SAC identifies a sampling of Plan provisions that Defendants allegedly violated, the SAC does not specify the relevant provision for each of the 209 Medical Claims. See N. Jersey Plastic Surgery Ctr., LLC, 2023 WL 5956142, at *6-7 (complaint failed to state an ERISA benefits claim where it did not identify which provision of the plan entitled the plaintiff to the amount demanded, and collecting cases that have dismissed “similarly defective claims that failed to identify a provision of the applicable plan documents entitling the plaintiff to the relief sought”).
Moreover, even the sampling of Plan provisions that are provided in the SAC do not provide for 100% reimbursement of a provider's rate. The SAC indicates that Plaintiffs billed their standard rate and are seeking 100% reimbursement from Defendants of the amount billed, but Plaintiffs do not cite a single Plan provision that requires Defendants to fully reimburse the provider at the provider's standard rate. Therefore, the SAC fails to tie the dollar amounts Plaintiffs seek for any Medical Claim to the relevant Plan provisions. As such, assuming Plaintiffs are authorized to bring a claim for benefits with respect to the ERISA-governed Plans, the SAC does not plead with the required specificity how the wrong reimbursement rates were applied, nor that Plaintiffs are entitled to the requested reimbursements. See Park Ave. Aesthetic Surgery, P.C. v. Empire Blue Cross Blue Shield, 2021 WL 665045, at *3 (S.D.N.Y. Feb. 19, 2021) (plaintiff failed to state a claim where the complaint requested 100% reimbursement but did not identify which terms of the plan entitled the patient or provider to 100% reimbursement or to an “in-network” reimbursement rate, and explaining that the plaintiff did not plead with specificity how the wrong reimbursement rates were applied or that it was entitled to “billed charges”); Anjani Sinha Med. P.C. v. Empire HealthChoice Assurance, Inc., 2023 WL 5935787, at *6 (E.D.N.Y. Sept. 12, 2023) (dismissing claim for reimbursement at the in-network' rate because the complaint identified no plan provision requiring the defendant to pay the in-network rate).
Accordingly, as an alternative to dismissal for failure to plead exhaustion of administrative remedies, I respectfully recommend that Counts One and Two be dismissed in their entirety for failure to state a claim. This recommendation is outlined in the spreadsheet attached to this Report. Specifically, as to the 209 Medical Claims that I recommend be dismissed in the alternative for failure to state a claim, Column E states: “Dismiss for . . . failure to state claim.” While the Court is sympathetic to Plaintiffs' desire to be reimbursed at reasonable rates for the indisputably valuable services they provided to Members of Defendants' Plans, the pleading is simply too conclusory to demonstrate a plausible violation of any of the relevant Plan payment provisions.
ii. Plaintiffs Failed to Adequately Plead that they are a Participant, Beneficiary, or Fiduciary of Certain of the ERISA Plans
To state a claim under ERISA § 502(a)(1)(b), a plaintiff must plausibly allege it is a participant or beneficiary of the ERISA plan. Under ERISA § 502(a)(3), the plaintiff must be a participant, beneficiary, or fiduciary of the plan. Additionally, assignees of beneficiaries can assert a cause of action under ERISA § 502(a) provided there are sufficient allegations that the participant or beneficiary assigned her claim in exchange for health care benefits and that the scope of the assignment included the patient's right to sue. Pro. Orthopaedic Assocs., 2016 WL 6900686, at *4; see also Simon v. Gen. Elec. Co., 263 F.3d 176, 177 (2d Cir. 2001). However, if an ERISA plan includes an unambiguous anti-assignment provision, this renders any alleged assignment “ineffective - a legal nullity.” McCulloch Orthopedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 147 (2d Cir. 2017). That is, unless the plan expressly waives the antiassignment provision. Superior Biologics NY, Inc. v. Aetna, Inc., 2022 WL 4110784, at *8-9 (S.D.N.Y. Sept. 8, 2022).
Whether a plaintiff has plausibly alleged that it as a participant, beneficiary, fiduciary or assignee is frequently posed as a question of whether the plaintiff has “standing” to sue, but this is a misnomer. This issue is different from constitutional or prudential standing and refers instead to whether a plaintiff has a cause of action under the applicable statute, i.e., whether the plaintiff falls “within the class of plaintiffs whom Congress has authorized to sue.” Am. Psychiatric Ass'n v. Anthem Health Plans, Inc., 821 F.3d 352, 359-60 (2d Cir. 2016). This is often referred to as “statutory standing,” but is ultimately a question of whether the plaintiff failed to state a claim, and thus is an issue properly considered under Rule 12(b)(6), as opposed to a Rule 12(b)(1). Merrick v. UnitedHealth Grp. Inc., 175 F.Supp.3d 110, 116 n.9 (S.D.N.Y. 2016). Unlike issues of constitutional standing, the Court need not address the question of statutory standing before reaching the merits of a claim, because statutory standing is itself a merits question.
Here, Plaintiffs admit that they are not participants, beneficiaries, or fiduciaries of any of the ERISA Plans, but contend that they are assignees of the Plan beneficiaries pursuant to valid assignment agreements. Specifically, the SAC alleges that “the Patients executed assignments of benefits” to Plaintiffs before, during, or after receiving treatment “that assigned the benefits that the Patients were entitled to receive from Empire-affiliated health plans as Empire Members.” (SAC ¶¶ 45-50.) The SAC includes excerpts of various “assignment of benefits” signed by the Patients. (Id. ¶¶ 46-56.) Defendants argue that as to 126 Medical Claims governed by 30 different Plans, Plaintiffs are not assignees of Plan beneficiaries because the relevant Plans contain express anti-assignment provisions that render any purported assignment null. However, of these 126 Medical claims, only 84 are governed by ERISA Plans (as opposed to non-ERISA Plans) and thus the instant analysis only concerns 84 Medical Claims. Of the approximately 30 ERISA Plans at issue, none contain a “surprise bill” exception.
The Court does not at this time discuss the impact, if any, of the anti-assignment clauses in the non-ERISA Plans on Plaintiffs' ability to assert state law claims as to Medical Claims governed by those Plans.
Approximately 67 of the Medical Claims relate to Plans that contain an anti-assignment provision, but also contain a “surprise bill” exception to the provision. Defendants do not seek to dismiss these claims on this ground and concede that a factual inquiry is needed to determine the applicability of the “surprise bill” exception to these Medical Claims.
One such Plan - the Viant Technology Plan - also contains no exception for written consent. This Plan states: “Any assignment of benefits, even if assignment includes the providers right to receive payment, is void.” (See O'Brien Decl., Ex. DDD at p. 119.) There is no ambiguity that this Plan bars assignment, and therefore any alleged assignment in relation to this Plan is ineffective. McCulloch, 857 F.3d at 147. The remaining 29 Plans include language that claims are not assignable “without the written consent of the Plan.”
These plans are: Canon USA Plan (Ex. D at 117), Excavators Union LCL 731 Welfare Fund Plan (Ex. QQQ at 99), Local 580 Insurance Fund Plan (Ex. U at 59, 90), I.U.O.E. Local 30 Plan (Ex. J at 60), United Nations Plan (Ex. XX at 53), Continuum Health Partners Plan (Ex. E at 65, 95), Riverside Health Care Plan (Ex. OO at 54), Rye Country Day School Plan (Ex. PP at 18), MUFG Union Bank Plan (Ex. AA at 64), H&R Block Plan (Ex. G at 70), Steamfitters Industry Plan (Ex. TT at 45), Local 60 Health & Welfare Fund Plan (Ex. V at 48), Institute of Applied Human Dynamics Local 33 (Ex. Q at 46), 2019 Health & Benefit Trust Fund of the I.U.O.E. Local 94 PPO Benefit Fund (Ex. H at 45), 2018 Health & Benefit Trust Fund of the I.U.O.E. Local 94 PPO Benefit Fund (Ex. I at 45), 2017 New York and New England Associates of Verizon Plan (Ex. YY at 42), 2016 Management Employees of Verizon Plan (Ex. AAA at 47), New York District Council of Carpenters Welfare Fund Plan (Ex. BB at 28), IBM Plan (Ex. K at 198), Building Services 32BJ Plan (Ex. C at 118 and see Ex. PPP (summary plan description)), PepsiCo Plan (Ex. KK at 103), New York Hotel Trades Council Plan (Ex. GG at 87), Siemens Plan (Ex. QQ at 172), Sound Shore RN Plan (Ex. RR at 37), Petco Plan (Ex. LL at 63), 2017 Montefiore Plan (Ex. X at 72), 2019 Montefiore Plan (Ex. Y at 73), FedEx Plan (Ex. F at 64), and AFCO Plan (Ex. TTT at 76). All references to exhibits in this footnote are to the O'Brien Declaration at ECF No. 66.
As to the Medical Claims governed by the 29 Plans that include an exception for the written consent of the Plan, the SAC alleges that Defendants provided written consent to these assignments by engaging with Plaintiffs through written correspondence as if Plaintiffs were the beneficiaries, including by sending written explanations of benefits, partial payments, requests for supporting records, appeal responses, and appeal determinations. (SAC ¶¶ 73-76.) This argument is unavailing. Courts interpret ERISA plans “in an ordinary and popular sense,” Critchlow v. First Unum Life Ins. Co., 378 F.3d 246, 256 (2d Cir. 2004), and the ordinary meaning of the phrase “written consent” to assignment is a writing that states that consent to assignment is given - not a series of communications that are silent as to assignment. See Superior Biologics, 2022 WL 4110784, at *7 (noting that “[t]he plain meaning of these written consent clauses is that assignments are prohibited without the written consent of Aetna,” and finding that Aetna had not consented to assignment despite its repeated conduct of directly communicating with and making payments to the plaintiff-provider). The alleged communications merely indicated Defendants' willingness to communicate directly with Plaintiffs to some extent, and do not constitute “written consent” to assignment of benefits.
Plaintiffs' reliance on Neuroaxis Neurosurgical Assocs., PC v. Cigna Healthcare of New York, Inc., 2012 WL 4840807 (S.D.N.Y. Oct. 4, 2012) is misplaced. In that case, the court found that Cigna's “long-standing pattern and practice of direct payment to Neuroaxis is sufficient to show its consent to Neuroaxis' assignments.” Id. at *3. However, the plan in that case permitted assignment when “agreed to by” Cigna and did not require written consent. Accordingly, unlike here, Cigna was able to consent to the assignment through its actions.
In the alternative, Plaintiffs argue that even if Defendants' dealings with Plaintiffs do not constitute written consent to the assignment of benefits, Defendants' actions, “at the very least, constitute a full and enforceable waiver of the terms of the purported anti-assignment clauses.” (SAC ¶ 76.) However, waiver of a contract right must be intentional, and the defense of waiver thus “requires a clear manifestation of an intent . . . to relinquish [a] known right.” Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of New Jersey, Inc., 448 F.3d 573, 585 (2d Cir. 2006) (quotation marks and citation omitted). It is well established that “mere silence . . . will not support a finding of waiver.” Id.; see also Superior Biologics, 2022 WL 4110784, at *8-9. For this reason, courts in this Circuit have repeatedly rejected identical arguments that a health plan's communications with and payments to medical providers constitute a waiver of anti-assignment provisions. See, e.g. id. (allegations that the health insurer directly communicated with the plaintiff during the processing and payment of claims, allowed the plaintiff to submit claims on behalf of its patients, and made direct payments to plaintiff did not constitute waiver of the anti-assignment provisions); Merrick, 175 F.Supp.3d at 123-24 (allegations that the health insurer made direct payments to the plaintiff providers and communicated directly with the plaintiffs were insufficient to plead waiver).
Indeed, the fact that Defendants challenge Plaintiffs' standing here shows that they have not waived these provisions. Superior Biologics, 2022 WL 4110784, at *10 (“Given that Aetna's argument on this Motion is that Plaintiffs lack standing, it is clear Aetna has not waived these provisions.”); see also Neurological Surgery, P.C. v. Travelers Co., 243 F.Supp.3d 318, 330 (E.D.N.Y. 2017) (where administrator's central argument was that the plaintiff lacked standing, this demonstrated that the administrator did not waive the anti-assignment provision).
Moreover, the SAC itself strongly suggests that Defendants refused to recognize the purported assignments by declining to deal directly with Plaintiffs or reimburse them for their services -indeed, that is why Plaintiffs have brought this lawsuit.
Plaintiffs rely on two unpublished decisions out of the Eastern District of New York -Neurological Surgery, PC. v. Oxford Health Plans (NY), Inc., 18 Civ. 00560-GRB-AYS, Memo & Order at 12 (E.D.N.Y. Oct. 30, 2020), and Neurological Surgery PC v. Empire Healthchoice HMO, Inc. 14 Civ. 07585-JFB-GRB, ECF No. 49 at 7-8 (E.D.N.Y. Mar. 30, 2016) - in which the court found that notwithstanding the anti-assignment clauses, the complaints alleged a course of conduct on the part of the defendants, including hundreds of communications with the plaintiffs that treated the plaintiffs as the assigned beneficiaries, and thus stated a plausible claim that the defendants waived the anti-assignment provisions. In both cases, the court permitted limited discovery to assess whether the defendants waived the anti-assignment provisions. These decisions are not binding and deviate from the caselaw in this District. Moreover, discovery has already been exchanged in this case. Accordingly, if there was evidence to establish waiver, such evidence should have been exchanged and more facts supporting waiver presented in the SAC. Therefore, these decisions are not persuasive.
For the same reason, I do not recommend granting Plaintiffs' alternative request that they be permitted to take focused discovery to establish waiver. The parties already had the opportunity to engage in discovery, and it is unclear what evidence, if any, Plaintiffs contemplate uncovering, because Plaintiffs should be in possession of any written correspondence from Defendants waiving the anti-assignment provisions. See Superior Biologics, 2022 WL 4110784, at *5 (on Rule 12(b) motion to dismiss for lack of statutory standing, rejecting plaintiff's request for limited discovery as to waiver because the plaintiff already had an opportunity to review the plans and pursue discovery related to them); see also N. Jersey Plastic Surgery Ctr., LLC, 2023 WL 5956142, at *11, n.8 (S.D.N.Y. Sept. 13, 2023) (denying discovery as to waiver of anti-assignment clauses in light of “the numerous cases rejecting similar waiver arguments on motions to dismiss”). Plaintiffs' request for additional discovery also attempts to circumvent their pleading obligations because the SAC does not permit a reasonable inference that Defendants waived the anti-assignment provisions, and thus is “devoid of any factual content necessary to open the doors to” further discovery. Sasson Plastic Surgery, LLC v. UnitedHealthcare of N.Y., Inc., 2021 WL 1224883, at *8 (E.D.N.Y. Mar. 31, 2021), opinion vacated in part on other grounds, 2022 WL 2664355 (E.D.N.Y. Apr. 26, 2022).
Plaintiffs also argue that a subset of the Plans at issue bar assignments to out-ofnetwork providers but, in the same clause, also allow the plan to pay those providers directly, and that these clauses are too ambiguous to constitute explicit anti-assignment clauses. This argument has also been repeatedly rejected by courts in this Circuit. See, e.g. Superior Biologics, 2022 WL 4110784, at *7-8 (explaining that the “trend in this District” is to give effect to both an anti-assignment and a direct payment clause in a plan, and holding that “the antiassignment clauses in the plans at issue are not rendered ambiguous nor negated by the existence of direct payment provisions.”); Med. Soc'y of N.Y. v. UnitedHealth Grp. Inc., 2019 WL 1409806, at *9 (S.D.N.Y. Mar. 28, 2019); Merrick, 175 F.Supp.3d 110.
Finally, Plaintiffs argue that as to those medical services that were provided on an emergency basis, federal and state law prohibits the anti-assignment provisions and renders them unenforceable. Plaintiffs cite ERISA regulation 29 C.F.R. § 2590.715-2719A(b)(1), which provides that, if a group health plan provides any benefits with respect to services in an emergency department of a hospital, the plan must cover emergency services consistent with the rules established by the regulations. These rules include requiring that the plan provide coverage for emergency services “[w]ithout regard to whether the health care provider furnishing the emergency services is a participating network provider with respect to the services.” Id. § 2590.715-2719A(b)(2)(ii). Plaintiffs do not point to case law supporting this argument, but nonetheless assert that it would be reasonable for the Court to interpret the ERISA regulations to hold that when services are provided on an emergency basis, this essentially overwrites other ERISA administrative requirements and permits the Court to ignore the Plans' anti-assignment provisions. This novel argument is not persuasive.
Nothing in the cited regulations states that anti-assignment provisions are unenforceable in the event of an emergency procedure. Rather, the regulations mandate that plans and issuers offering group health insurance coverage “must cover emergency services” without regard to the network status of the provider. 29 C.F.R. § 2590.715-2719A(b)(1). The question at issue here is not whether Defendants are obligated to “cover” the services in question, which is a merits issue; rather, the question is whether Plaintiffs fall within the class of people who are authorized to sue when Defendants fail to do so. The anti-assignment provisions are not “limitations on coverage” because they do not limit the Members' coverage, but instead limit who can sue to enforce coverage. Therefore, this argument also fails.
The SAC also alleges that Plaintiffs are “authorized representatives” of the Patients. (SAC ¶ 81.) Plaintiffs concede that acting as an authorized representative does not confer statutory standing upon them.
Accordingly, Plaintiffs have failed to show that they are authorized to bring ERISA claims as to 84 the Medical Claims within Counts One and Two. In the event these claims are not dismissed for the reasons provided above, I respectfully recommend that 84 Medical Claims subject to Plans containing express anti-assignment provisions that do not include “surprise bill” exceptions be dismissed on this ground. These claims are represented in the spreadsheet attached to this decision, and specifically are those claims where column E states: “Dismiss for . . . lack of statutory standing.”
Because I recommend that both Count One and Count Two be dismissed for failure to state a claim, I do not address Defendants' separate argument that Count Two be dismissed as duplicative of the claims asserted in Count One. I also do not address Defendants' argument that as to the 20 Medical Claims represented in Exhibit D of the Supplemental Sirota Declaration (“Exhibit D”), Plaintiffs are pursuing reimbursement from the wrong party, because these Medical Claims are disposed of by the above Recommendations.
c. Certain Claims within Counts One and Two Should be Dismissed as Time Barred
ERISA does not provide a time limitation for bringing a civil action, but a plan and its member may “agree by contract to a particular limitations period[,]” and a court is generally required to enforce such a period, absent “extraordinary circumstances.” Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 100-08 (2013) (“Heimeshoff III”). Absent a contractual limitations period, courts apply the forum state's limitations period for breach-of-contract claims, which in New York is six years. Popovchak v. UnitedHealth Grp. Inc., 2023 WL 6125540, at *6 (S.D.N.Y. Sept. 19, 2023); N.Y. C.P.L.R. § 213(2). Department of Labor (“DOL”) regulations, promulgated pursuant to 29 U.S.C. § 1133, require every employee benefit plan governed by ERISA to “establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations.” 29 C.F.R. § 2560.503-1(b) (the “DOL Regulation”). The DOL Regulation requires administrators to provide claimants with a notification of any adverse benefit determination setting forth a “description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review.” Id. § 2560.503-1(g)(1).
Defendants argue that 37 of Plaintiffs' ERISA Plan-governed Medical Claims are time-barred under the relevant plan terms and that an additional 8 of Plaintiff's ERISA Plan-governed Medical Claims are untimely under New York's 6-year statute of limitations.
As to the 8 Medical Claims that Defendants argue fall outside the 6-year statute of limitations, these are all governed by the Sterling Jewelers Plan, a copy of which was not exchanged in discovery and is not before the Court. Plaintiffs argued at oral argument that for these Medical Claims, the limitations period runs from the date of the denial of benefits and that these claims are thus timely. Because the Plan document is not before the Court, Plaintiff's argument is sufficient to defeat the statute of limitations argument at this stage. But, as noted above, these claims must nevertheless be dismissed for other reasons.
As to the remaining 37 Medical Claims, Plaintiffs do not dispute that the claims fall outside of the limitations period provided by the relevant Plans. However, Plaintiffs argue that the Plans' limitations periods are not enforceable here, because to the extent Defendants made adverse benefit determinations, those adverse benefits determinations failed to comply with the DOL Regulation because they did not set forth the plan-imposed time limits for seeking judicial review.
Specifically, the New York Presbyterian Hospital 2015 and 2017 Plans, Westchester Jewish Community Services Plan, NYSARC Plan, and St. Luke's Plan require that any claims for services be submitted to Defendants within 18 months of receiving the services and that no lawsuit can be commenced within 2 years from the date the claim was required to be filed. O'Brien Decl., Ex. CC at 41, 64; Ex. EE at 44, 68; Ex. EEE at 45, 68; Ex. II at 41, 64; Ex. SS at 44, 67. The U.S.W.U. Local 74 Plan, Local 1500 Welfare Fund, 2017 Montefiore Medical Center, I.U.O.E Local 30, 2019 Riverside Healthcare, I.U.O.E. Local 94, 15 Institute of Applied Human Dynamics, 18 Local 60 Health & Welfare Fund, and 2018 Steamfitters Industry Welfare Fund Plans bar the filing of a lawsuit more than two years from the date of the provision of medical services. Id., Ex. UU at 61; Ex. VV at 56; Ex. X at 60; Ex. J at 75; Ex. OO at72; Ex. E at 81; Ex. I at 63; Ex. Q at 64; Ex. V at 66; Ex. TT at 61; Ex. H at 66; see also Sirota Decl., Ex. B.
There is a disagreement among courts in this Circuit as to whether the DOL Regulation in fact requires the adverse benefit determination to set forth in the claim denial letter the time limit for bringing a civil action as opposed to only administrative procedures, but Courts in this District typically find that the DOL regulation does encompass civil lawsuits, meaning that any adverse benefit determination must explicitly state the time limits for bringing a civil action. See, Popovchak, 2023 WL 6125540, at *7 (finding that the phrase “the plan's review procedures” encompasses ERISA lawsuits as opposed to applying only to administrative procedures and that “the word ‘including,'” as used in the DOL Regulation, would otherwise lose its meaning); Novick v. Met. Life Ins. Co., 764 F.Supp.2d 653, 660-64 (S.D.N.Y. 2011) (same). In Popovchak and Novick, the relevant plans provided that the statute of limitations began to run from the denial of benefits on appeal. The court in both cases held that because the letters denying benefits did not explicitly provide the time limitation for bringing a civil action, and thus violated the DOL Regulation, the letter denying benefits failed to trigger the limitations period. As the court in Popovchak explained, this is not an issue of equitable tolling, but rather concerns whether and when the statute of limitations is “triggered.”
Other courts in this Circuit have interpreted the DOL Regulation differently. Specifically, in Heimeshoff v. Hartford Life & Accident Insurance Company, the court found that the DOL Regulation does not require an adverse benefits determination to explicitly include the plan's limitations period for bringing a civil action because the regulation “says nothing about time limits with respect to civil actions.” 2012 WL 171325, at *6 (D. Conn. Jan. 20, 2012) (“Heimeshoff I”), aff'd, 496 Fed.Appx. 129 (2d Cir. 2012) (“Heimeshoff II”), aff'd, 571 U.S. 99 (2013). In that case, the relevant plan included a provision that the claimant was required to bring a civil action within three years after her proof of loss was due. The court applied the three-year limitations period established by the plan despite the fact that the insurer had failed to reference the limitations period in its adverse benefits determination letter, finding that its failure to do so did not affect the timeliness of the complaint. Id.
In affirming Heimeshoff I, the Second Circuit did not decide the meaning of the DOL Regulation. Rather, the court noted that the health plan at issue provided that the limitations period ran from the time that proof of loss was due under the plan, rather than from the denial of benefits. Heimeshoff II, 496 Fed.Appx. at 130. The Second Circuit explained that “it does not offend the statute to have the limitations period begin to run before the claim accrues.” Id. (emphasis added). The Second Circuit therefore applied the limitations period that had been set by the plan and dismissed the claim as time-barred. Id. The court also held that equitable tolling did not apply, because plaintiff's counsel was provided a copy of the relevant plan before filing suit and was thus aware of the plan's limitations period before exhausting the claim process.
In affirming Heimeshoff II, the Supreme Court also took no position as to the interpretation of the Regulation. Heimeshoff III, 571 U.S. at 104-05 (affirming the Second Circuit's holding that “it does not offend ERISA” for a plan's limitations period to commence before the plaintiff is able to file suit, and not discussing whether the DOL Regulation requires an adverse benefit determination to set forth the time limit for filing suit).
The relevant Plans are similar to the plan in Heimeshoff in that they provide that the limitations period begins to run from the date that the medical service is provided rather than from the date of the denial of benefits. The Second Circuit held in Heimeshoff that “it does not offend” the DOL Regulation “to have the limitations period begin to run before the claim accrues.” 496 Fed.Appx. at 130. Accordingly, unlike in Novick and Popovchak, there is no issue here of whether the letters denying the benefits claims were sufficient to “trigger” the limitations period, because the limitations period was triggered from the date that the medical services were provided. In other words, while Defendants' adverse benefits determinations allegedly did not comply with the DOL Regulation, Heimeshoff counsels that this does not impact the triggering of the statute of limitations when, as here, it began to run from the provision of medical services and not from the denial of benefits. As such, in accordance with Heimeshoff, it is appropriate to apply the limitations periods set forth in the Plans.
Plaintiffs cite cases that criticized the Second Circuit's decision in Heimeshoff as having glossed over the purpose behind the DOL Regulation. For example, in Mirza v. Insurance Administrator of America, Inc., the Third Circuit criticized Heimeshoff II as overlooking practical considerations and permitting plan administrators to “hide the ball and obstruct access to the courts.” 800 F.3d 129, 135-36 (3d Cir. 2015). Similarly, in Li Neuroscience Specialists v. Blue Cross Blue Shield of Massachusetts, a court in the Eastern District of New York discussed that it is a better policy solution to require insurers not to “bury” the plan's limitations period in lengthy plan documents. 2019 WL 121673, at *3-4 (E.D.N.Y. Jan. 7, 2019). However, in those opinions, the relevant plans provided that the limitations period began to run from the date of the denial of benefits rather than (as here and in Heimeshoff) from some point before the date of denial of benefits. Accordingly, these cases are distinguishable from Heimeshoff and the case at hand.
In light of the above, I recommend that, as an alternative to the bases for dismissal provided above, the Court dismiss Counts One and Two as to the 37 untimely Medical Claims. These claims are represented in the spreadsheet attached to this Report, where column E states that my recommendation is to “Dismiss . . . as untimely.”
2. Counts Three through Seven: State Law Claims
Counts Three through Seven of the SAC assert state law claims for breach of express contract (Count Three); breach of implied contract (Count Four); unjust enrichment (Count Five); tortious interference (Count Six) and breach of third-party beneficiary contract rights (Count Seven). Defendants argue that these claims should be dismissed for failure to state a claim and that certain claims should be dismissed as preempted by ERISA and/or as time-barred. However, the Court need not consider these arguments. This Report recommends dismissal of all federal claims, and Plaintiffs and Defendants are not diverse. (SAC ¶¶ 18-21). Accordingly, the Court lacks original jurisdiction to consider the remaining claims. I thus respectfully recommend that the Court decline to exercise supplemental jurisdiction over the state law claims and that it dismiss these claims. See, e.g., Demopoulos v. Anchor Tank Lines, LLC, 117 F.Supp.3d 499, 513 (S.D.N.Y. 2015) (declining to exercise supplemental jurisdiction over state law claims after dismissing ERISA claims because all claims over which the court had original jurisdiction were dismissed); Travelers Co., 243 F.Supp.3d at 332 (same); Am. Psychiatric Assoc. v. Anthem Health Plans, 50 F.Supp.3d 157, 170 & n. 13 (D. Conn. 2014) (same). Plaintiffs may opt to bring these claims in state court.
3. Leave to Amend
Although leave to amend should be “freely give[n] . . . when justice so requires,” Fed.R.Civ.P. 15(a)(2), it “should generally be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the non-moving party[.]” United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016) (quotation marks and citation omitted). Amendment is generally “not warranted absent some indication as to what appellants might add to their complaint in order to make it viable.” Shemian v. Research In Motion Ltd., 570 Fed.Appx. 32, 37 (2d Cir. 2014).
Here, Plaintiffs already amended the complaint twice and have had the opportunity to take discovery. Courts frequently deny leave to file a third amended complaint, finding that “[t]hree bites at the apple is enough.” Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003). Moreover, despite being on notice of the SAC's deficiencies, Plaintiffs did not seek leave to amend the complaint and have not asserted that they could plead additional facts to cure the deficiencies identified in the SAC.
Accordingly, I respectfully recommend that the Court deny leave to amend the complaint a third time. See Barnville v. Mimosa Cafe, 2014 WL 3582878, at *6 (S.D.N.Y. July 10, 2014) (Woods, J.) (denying leave to amend where the plaintiff already amended his complaint twice and chose to rely on it rather than amend it in the face of the motion to dismiss); Angstadt v. Empire HealthChoice HMO, Inc., 2017 WL 10844692, at *9-10 (E.D.N.Y. Mar. 16, 2017) (dismissing ERISA claims with prejudice for failure to plead exhaustion because the plaintiffs had failed to cure the pleading deficiencies in a prior amendment); Merrick, 175 F.Supp.3d at 126 (dismissing ERISA claims with prejudice for lack of statutory standing where the plaintiffs did not suggest additional allegations they would add to address the deficiencies).
CONCLUSION
For the foregoing reasons, I respectfully recommend that the SAC be dismissed in its entirety. I recommend that Counts One and Two be dismissed for failure to adequately plead exhaustion and/or failure to adequately plead denial of benefits. Additionally, I recommend dismissal of ERISA claims as to the 84 Medical Claims governed by ERISA Plans with express anti-assignment provisions, for failure to plead “statutory standing.” As to the 37 Medical Claims governed by ERISA Plans that were filed after the statute of limitations provided in the Plans, I recommend dismissal as untimely. I further recommend that the Court decline to exercise supplemental jurisdiction over the state law claims (Counts Three through Seven) and dismiss those claims. The spreadsheet attached to this Report outlines which of the above recommendations apply to the various Medical Claims. I also recommend that leave to file a Third Amended Complaint be denied.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). If any party files written objections to this Report and Recommendation, the other party shall have fourteen days to serve and file a response. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
SPREADSHEET REPRESENTING COURT'S RECOMMENDATIONS
A B C D E F 1 Patient initials Plan ERISA Plan? Date of Service Recommendation: Counts One and Two (ERISA Claims) Recommendation: Remaining Counts (State Law Claims) 2 ABR NY Hotel Trades Council & Hotel Association of NYC Y 6/24/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 3 ABR NY Hotel Trades Council & Hotel Association of NYC Y 6/23/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 4 AD Canon USA Y 12/16/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 5 AD Canon USA Y 12/17/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 6 AD Canon USA Y 1/10/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 7 AD Canon USA Y 12/18/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 8 AF NY Medicaid N 3/30/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 9 AKN Petco Y 9/3/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 10 AKN Petco Y 9/3/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 11 AKN Petco Y 9/2/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 12 AKN Petco Y 10/4/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 13 AKN Petco Y 8/31/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 14 AKN Petco Y 9/1/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 15 AM Verizon Y 9/25/2017 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 16 AO NY Medicaid N 9/11/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 17 AR NY Medicare/MA N 12/5/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 18 AR Anthem N 2/19/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 19 AR Anthem N 4/19/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 20 AS Statewide Schools N 4/9/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 21 AS Statewide Schools N 4/1/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 22 ATS Verizon Y 5/5/2020 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 23 AW NY Presbyterian Y 12/29/2016 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 24 AW NY Presbyterian Y 12/31/2016 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 25 BD Individual Medicare N 10/23/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 26 BS MTA-NYC Transit N 9/6/2016 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 27 CB NY Presbyterian Y 9/19/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 28 CB NY Presbyterian Y 9/20/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 29 CC Local 74 Welfare Fund Y 12/7/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 30 CC Local 74 Welfare Fund Y 1/8/2019 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 31 CC Local 74 Welfare Fund Y 12/6/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 32 CEP Individual PPO N 9/6/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 33 CFH Building Service 32BJ Y 11/4/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 34 CM MTA-NYC Transit N 9/15/2016 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 38 A B C D E F 35 CO Pepsico Y 12/7/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 36 CODSN Excavators Union Local 731 Y 11/5/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 37 CODSN Excavators Union Local 731 Y 11/4/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 38 CRP Another Step Y 9/25/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 39 CRP Another Step Y 6/15/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 40 CS Local 580 Insurance Fund Y 5/1/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 41 DK Westchester Jewish Community Services Inc. Y 2/26/2017 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 42 DK Westchester Jewish Community Services Inc. Y 2/27/2017 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 43 DK Westchester Jewish Community Services Inc. Y 2/25/2017 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 44 DP Verizon Y 5/22/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 45 DP Verizon Y 5/24/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 46 DP Verizon Y 5/25/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 47 DP Verizon Y 5/23/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 48 DP Verizon Y 5/21/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 49 DP Verizon Y 5/26/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 50 DS AFCO AvPorts Y 1/15/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 51 DS AFCO AvPorts Y 1/15/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 52 DS AFCO AvPorts Y 2/16/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 53 DS AFCO AvPorts Y 3/8/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 54 DT Statewide Schools N 7/12/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 55 EAM Laundry, Dry Cleaning Workers, and Allied Industries Y 10/1/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 56 EC Health & Benefit Trust FD IUOE Local 94 Y 3/27/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 57 EEV Laundry, Dry Cleaning Workers, and Allied Industries Y 3/3/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 58 EL NY Medicare/MA N 6/9/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 59 ELC NY Hotel Trades Council & Hotel Association of NYC Y 2/8/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 60 ELC NY Hotel Trades Council & Hotel Association of NYC Y 1/29/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 61 EM Individual HMO N 9/20/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 62 EM Individual HMO N 9/21/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 63 EM Individual HMO N 9/19/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 39 A B C D E F 64 EMT Local 282 Welfare Trust Y 8/11/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 65 ES NY Medicaid N 8/31/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 66 EV NY District Council of Carpenters Y 3/21/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 67 EV NY District Council of Carpenters Y 3/22/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 68 EW Montefiore Medical Center Y 4/13/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 69 FD NY Hotel Trades Council & Hotel Association of NYC Y 1/4/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 70 FD NY Hotel Trades Council & Hotel Association of NYC Y 1/3/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 71 FM Verizon Y 10/18/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 72 FM Verizon Y 10/19/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 73 FM Verizon Y 10/20/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 74 FP NY Medicare Supplement N 8/4/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 75 FWM Statewide Schools N 11/29/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 76 GB Montefiore Medical Center Y 7/17/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 77 GMG Laundry, Dry Cleaning Workers, and Allied Industries Y 7/15/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 78 GP Metal Trades Branch Local 638 Y 9/1/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 79 GR Verizon Y 2/22/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 80 HC Laundry, Dry Cleaning Workers, and Allied Industries Y 1/12/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 81 ID NY Medicare/MA N 9/8/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 82 JAD NY Medicaid N 11/28/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 83 JAS Verizon Y 1/10/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 84 JAS Verizon Y 1/11/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 85 JAS Verizon Y 1/9/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 86 JB Statewide Schools N 12/31/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 87 JB NY Medicare/MA N 11/4/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 88 JB NY Medicare/MA N 11/5/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 89 JB NY Hotel Trades Council & Hotel Association of NYC Y 4/30/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 90 JB NY Hotel Trades Council & Hotel Association of NYC Y 4/29/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 91 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/6/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 40 A B C D E F 92 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/5/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 93 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/7/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 94 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/1/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 95 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/2/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 96 JB NY Hotel Trades Council & Hotel Association of NYC Y 5/3/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 97 JD Individual HMO N 2/9/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 98 JD Individual HMO N 2/9/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 99 JD Individual HMO N 2/8/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 100 JDE Local 1500 Welfare Fund Y 4/17/2015 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 101 JDE Local 1500 Welfare Fund Y 12/27/2016 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 102 JE Individual HMO N 12/5/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 103 JG Steamfitter's Industry Welfare Fund Y 5/29/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 104 JGCP Local 60 Health & Welfare Y 5/21/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 105 JGCP Local 60 Health & Welfare Y 5/21/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 106 JGCP Local 60 Health & Welfare Y 5/20/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 107 JMK IUOE Local 30 Y 4/13/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 108 JL Westchester Jewish Community Services Inc. Y 7/22/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 109 JL Westchester Jewish Community Services Inc. Y 7/22/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 110 JL Westchester Jewish Community Services Inc. Y 7/21/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 111 JNM Plumbers & Steamfitters Local 21 Y 3/31/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 112 JO Individual HMO N 12/16/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 113 JO Individual HMO N 12/16/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 114 JO Individual HMO N 12/17/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 115 JO Individual HMO N 12/15/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 116 JP NY Presbyterian Y 11/7/2017 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 117 JR Laborers Local 235 Welfare Fund Y 8/7/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 118 KDRF Statewide Schools N 8/5/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 41 A B C D E F 119 KDRF Statewide Schools N 8/5/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 120 KDRF Statewide Schools N 8/6/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 121 KL Institute of Applied Human Dynamics Local 33 Y 12/9/2015 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 122 KR NYSUT N 7/9/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 123 KS NYSARC Westchester Chapter Y 1/26/2016 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 124 LD Health & Benefit Trust FD IUOE Local 94 Y 7/17/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 125 LK Individual HMO N 2/3/2016 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 126 LMH NY Medicare/MA N 7/24/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 127 LO IBM, Inc. Y 8/2/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 128 LP Fedex Y 8/1/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 129 LP Fedex Y 8/2/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 130 LR Teamsters Local 210 Y 10/29/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 131 LS NYC N 1/16/2020 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 132 MA Bedford Central School District N 12/27/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 133 MA Bedford Central School District N 12/28/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 134 MA Bedford Central School District N 12/29/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 135 MA Bedford Central School District N 12/30/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 136 MAG United Nations Y 9/29/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 137 MB Building Service 32BJ Y 11/29/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 138 MB Building Service 32BJ Y 11/30/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 139 MB Building Service 32BJ Y 12/4/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 140 MB Building Service 32BJ Y 12/5/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 141 MC Local 464A UFCW Y 9/11/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 142 MC Local 464A UFCW Y 9/11/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 143 MC Local 464A UFCW Y 9/12/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 144 MC Local 464A UFCW Y 9/13/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 145 MCB Local 1500 Welfare Fund Y 6/26/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 146 MCB Local 1500 Welfare Fund Y 7/24/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 147 MCB Local 1500 Welfare Fund Y 7/27/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 148 MCB Local 1500 Welfare Fund Y 7/17/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 149 MCB Local 1500 Welfare Fund Y 6/30/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 150 MCB Local 1500 Welfare Fund Y 6/27/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 151 MCB Local 1500 Welfare Fund Y 6/29/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 152 MCB Local 1500 Welfare Fund Y 6/28/2018 Dismiss for failure to exhaust, or failure to state claim, or as untimely. Decline to exercise supplemental jurisdiction 153 MD NYC N 11/17/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 42 A B C D E F 154 MD Siemens Y 7/2/2015 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 155 MD Siemens Y 7/1/2015 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 156 MD Sierra Toy Soldier Company Y 1/10/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 157 MM Continuum Health Partners Y 10/29/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 158 MM Continuum Health Partners Y 10/31/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 159 MM Continuum Health Partners Y 11/1/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 160 MP Riverside Health Care Y 3/17/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 161 MPP Building Service 32BJ Y 11/12/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 162 MR Building Service 32BJ Y 5/6/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 163 MR Sound Shore RN Y 2/11/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 164 MR Sound Shore RN Y 3/12/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 165 MR Sound Shore RN Y 3/26/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 166 MR Sound Shore RN Y 2/20/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 167 MS Riverside Health Care Y 12/12/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 168 MS Riverside Health Care Y 12/16/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 169 MS Riverside Health Care Y 12/15/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 170 MS Riverside Health Care Y 12/14/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 171 MS Riverside Health Care Y 12/13/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 172 MS Riverside Health Care Y 12/17/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 173 MS Riverside Health Care Y 12/18/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 174 MS Riverside Health Care Y 12/19/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 175 MS Riverside Health Care Y 12/20/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 176 NM Sound Shore RN Y 2/26/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 177 OM Individual HMO N 5/28/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 178 PC Rye Country Day School Y 12/18/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 179 PC Rye Country Day School Y 12/14/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 180 PC Rye Country Day School Y 12/15/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 181 PC Rye Country Day School Y 12/17/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 182 PC Rye Country Day School Y 12/16/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 183 PM Verizon Y 7/5/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 184 RD Verizon Y 3/14/2017 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 185 RH NY Medicare/MA N 5/27/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 186 RJ NY Medicare/MA N 9/13/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 187 RJ NY Medicare/MA N 9/14/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 188 RJ NY Medicare/MA N 9/17/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 189 RJ NY Medicare/MA N 9/20/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 43 A B C D E F 190 RK Individual HMO N 2/7/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 191 RQ Verizon Y 4/5/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 192 RQ Verizon Y 3/29/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 193 RQ Verizon Y 4/5/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 194 RQ Verizon Y 4/10/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 195 RQ Verizon Y 4/4/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 196 RQ Verizon Y 3/31/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 197 RQ Verizon Y 4/1/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 198 RQ Verizon Y 4/2/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 199 RQ Verizon Y 4/3/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 200 RQ Verizon Y 4/5/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 201 RQ Verizon Y 4/6/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 202 RQ Verizon Y 4/8/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 203 RQ Verizon Y 4/13/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 204 RQ Verizon Y 4/12/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 205 RQ Verizon Y 4/7/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 206 RQ Verizon Y 4/11/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 207 RQ Verizon Y 4/9/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 208 RQ Verizon Y 3/5/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 209 RQ Verizon Y 3/9/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 210 RS Local 1500 Welfare Fund Y 9/22/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 211 RS Local 1500 Welfare Fund Y 9/23/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 212 RS Local 1500 Welfare Fund Y 9/24/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 213 RS Unite Here Health Y 7/5/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 214 RS Unite Here Health Y 7/30/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 215 RS OUSDHP Y 3/5/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 216 RW MTA-NYC Transit N 4/10/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 217 RW MTA-NYC Transit N 4/10/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 218 RW MTA-NYC Transit N 5/4/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 219 RW MTA-NYC Transit N 4/16/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 220 RW MTA-NYC Transit N 12/1/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 221 RW MTA-NYC Transit N 7/30/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 222 RW MTA-NYC Transit N 1/2/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 223 RW MTA-NYC Transit N 2/3/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 224 RW MTA-NYC Transit N 4/21/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 225 RW MTA-NYC Transit N 4/28/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 44 A B C D E F 226 RW MTA-NYC Transit N 5/21/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 227 RW MTA-NYC Transit N 5/28/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 228 RW MTA-NYC Transit N 6/11/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 229 RW MTA-NYC Transit N 6/25/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 230 RW MTA-NYC Transit N 6/30/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 231 RW MTA-NYC Transit N 7/14/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 232 RW MTA-NYC Transit N 1/13/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 233 RW MTA-NYC Transit N 2/5/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 234 RW MTA-NYC Transit N 3/3/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 235 RW MTA-NYC Transit N 3/27/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 236 RW MTA-NYC Transit N 3/31/2015 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 237 SAR Building Service 32BJ Y 8/5/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 238 SB Montefiore Medical Center Y 1/23/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing, or as untimely. Decline to exercise supplemental jurisdiction 239 SB Montefiore Medical Center Y 8/3/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 240 SC Hollow Metal Trust Fund Y 12/6/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 241 SC Hollow Metal Trust Fund Y 12/5/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 242 SC NY Presbyterian Y 4/12/2016 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 243 SCC St. Luke's Cornwall Y 8/15/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 244 SCC St. Luke's Cornwall Y 10/1/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 245 SCC St. Luke's Cornwall Y 8/10/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 246 SD Viant Technology Holding Y 6/10/2016 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 247 SG IUOE Local 30 Y 10/12/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 248 SH Sterling Jewelers Signet Y 1/1/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 249 SH Sterling Jewelers Signet Y 1/2/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 250 SH Sterling Jewelers Signet Y 1/3/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 251 SH Sterling Jewelers Signet Y 1/4/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 252 SH Sterling Jewelers Signet Y 1/20/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 253 SH Sterling Jewelers Signet Y 3/31/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 254 SH Sterling Jewelers Signet Y 4/14/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 255 SH Sterling Jewelers Signet Y 1/5/2015 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 256 SL NYC N 11/28/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 257 SS MUFG Union Bank, N.A. Y 9/3/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 258 SS MUFG Union Bank, N.A. Y 9/2/2019 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 259 SS Montefiore Medical Center Y 5/23/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 260 SS Montefiore Medical Center Y 5/23/2017 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 261 TD Unite Here Health Y 10/19/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 45 A B C D E F 262 TD Unite Here Health Y 10/16/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 263 TD Unite Here Health Y 10/17/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 264 TD Unite Here Health Y 10/24/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 265 TG Statewide Schools N 4/25/2018 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 266 TJRD NY Medicaid N 9/20/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 267 TJRD NY Medicaid N 9/22/2017 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 268 TO H&R Block Y 6/22/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 269 TO H&R Block Y 7/11/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 270 TW NY Presbyterian Y 10/21/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 271 VZJ NY Presbyterian Y 9/5/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 272 VZJ NY Presbyterian Y 10/18/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 273 WACJ NYC N 4/16/2020 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 274 WACJ NYC N 4/15/2020 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 275 WACJ NYC N 4/18/2020 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 276 WACJ NYC N 4/17/2020 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 277 WAW NY Presbyterian Y 4/26/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 278 WAW NY Presbyterian Y 4/29/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 279 WAW NY Presbyterian Y 4/28/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 280 WAW NY Presbyterian Y 4/27/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 281 WAW NY Presbyterian Y 4/30/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 282 WD IBM, Inc. Y 1/20/2018 Dismiss for failure to exhaust, or failure to state claim, or lack of statutory standing. Decline to exercise supplemental jurisdiction 283 WD Laundry, Dry Cleaning Workers, and Allied Industries Y 7/29/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 284 WD Laundry, Dry Cleaning Workers, and Allied Industries Y 8/1/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 285 WD Laundry, Dry Cleaning Workers, and Allied Industries Y 7/30/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 286 WD Laundry, Dry Cleaning Workers, and Allied Industries Y 7/31/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 287 WM NY Presbyterian Y 11/6/2018 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 288 WTB Statewide Schools N 8/31/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 289 WTB Statewide Schools N 8/30/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 290 WTB Statewide Schools N 9/1/2019 No federal claims because Plan not governed by ERISA Decline to exercise supplemental jurisdiction 291 YA Related Companies Y 10/23/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction 292 ZV Local 1500 Welfare Fund Y 6/26/2019 Dismiss for failure to exhaust, or failure to state claim. Decline to exercise supplemental jurisdiction