Lee Memorial Health System v. Blue Cross And Blue Shield of Florida, Inc.

MOTION to dismiss for failure to state a claim Plaintiff's Amended Complaint and Incorporated Memorandum of Law

M.D. Fla.May 24, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA CASE NO. 2:16-CV-738-JES-CM LEE MEMORIAL HEALTH SYSTEM Plaintiff, vs. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., and WINN DIXIE STORES INC., Defendant. ____________________________________/ DEFENDANT BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Defendant, BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC. (“Florida Blue”), by and through undersigned counsel, and pursuant to Fed.R.Civ.P. 12(b)(6), hereby files its Motion to Dismiss Plaintiff’s Amended Complaint and in support thereof states as follows: I. INTRODUCTION This is an action by a hospital to recover benefits for services rendered to S.A., a participant in a self-funded employee welfare benefit plan sponsored by Winn-Dixie Stores, Inc., (“Winn Dixie”). The participant was admitted to LMHS following a motor vehicle accident and hospitalized from October 3, 2013 to October 18, 2013. Amended Complaint at ¶16- ¶17. LMHS submitted a request for coverage authorization during the participant’s inpatient stay. Id. at ¶ 20. LMHS was informed in writing on October 15, 2013 that no benefits were available under the Plan due to an exclusion for any injuries caused by a Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 1 of 17 PageID 513 2 participant’s alcohol intoxication at the time of the accident. Id. at ¶ 21. By virtue of this lawsuit, LMHS seeks “reimbursement and compensation for any and all benefits it would have but for Defendant’s failure to provide coverage.” Id. at ¶ 33.1 In its Amended Complaint, LMHS adds Winn Dixie as a party to this proceeding. LMHS pivots from its original position that Florida Blue was responsible for the payment of benefits under the Plan. LMHS now clarifies that Florida Blue simply serves as claims administrator while Winn Dixie is the Plan Sponsor and Plan Administrator. Id. at ¶ 9-¶ 10. Since LMHS recognizes that Florida Blue is neither the Plan Sponsor nor the Plan Administrator within the meaning of ERISA, LMHS does not assert a claim for recovery of benefits against Florida Blue. Instead, LMHS seeks relief under the Declaratory Judgment Act, 28 U.S.C. § 2201–2202. Id. at ¶ 37. But unlike the original Complaint, LMHS’s new pleading does not seek a declaration under ERISA. Rather, the operative pleading rests on the Declaratory Judgment Act as the source of the requested relief. The Declaratory Judgment Act provides that a court “may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). Under well settled federal law, a request for relief under the Declaratory Judgment Act requires a continuing controversy between the parties. There is no allegation of any continuing controversy between LMHS and Florida Blue that would necessitate a declaration from this Court. The services were provided, a claim was submitted, and benefits were denied. The dispute focuses on the past circumstances of October 2013 when (i) the participant was involved in a motor vehicle 1 LMHS’s general allegation at paragraph 33 fails to specify which Defendant it seeks “reimbursement and compensation” from. Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 2 of 17 PageID 514 3 collision and (ii) the blood alcohol level testing showed the participant was highly intoxicated. Even if LMHS could properly plead a claim for declaratory relief against Florida Blue, its claim would be superfluous to the claim for benefits under ERISA’s remedy system. LMHS’s request for benefits under the Plan is sufficiently addressed in Count II of its Amended Complaint. Courts routinely decline requests for a declaratory judgment where they constitute repackaged claims for an adjudication on the merits of another cause of action. Furthermore, LMHS refers throughout its Amended Complaint to a Preferred Patient Hospital Agreement with Florida Blue (the “Agreement”). See, e.g., Amended Complaint at ¶¶ 11, 13 and 37. LMHS suggests, ever so vaguely, that its Agreement with Florida Blue somehow impacts the question of whether any Winn Dixie Plan benefits are payable. But LMHS’s reference to the Agreement is nothing more than a distractor. The Agreement between LMHS and Florida Blue does not speak to whether any benefits are available for the subject services. The Agreement simply controls the amount of any benefits that are payable if - and only if - the services are deemed covered according to the Winn Dixie Plan. LMHS cannot seize upon the Agreement to request declaratory relief because the Agreement is immaterial to the benefits controversy that frames this ERISA dispute. The question in this case is one of entitlement, or the right to any benefits at all. That question is controlled solely by the terms of the Winn Dixie Plan which includes the exclusion at issue. II. MEMORANDUM OF LAW A. LMHS’s Request For Declaratory Relief Should Be Analyzed Under The Declaratory Judgment Act, Not ERISA Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 3 of 17 PageID 515 4 Federal law provides for a remedy of a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201–2202. It states, in relevant part, that “any Court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. The Supreme Court has held that “[t]he Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.” Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1969). A motion to dismiss may challenge the sufficiency of an action under the federal Declaratory Judgment Act if the complaint fails to present an “actual controversy” that mirrors Article III's “case-or-controversy” requirement. Walden v. Ctr. For Disease Control & Prevention, 669 F.3d 1277, 1284 (11th Cir. 2012). In order to survive a motion to dismiss, LMHS must allege valid “substantive claims” in order to sustain the “request for declaratory relief in relation to those claims.” Zurich Am. Ins. Co. v. Amerisure Ins. Co., No. 9:16-CV- 81393, 2017 WL 366232, at *3 (S.D. Fla. Jan. 20, 2017)(quoting Long v. Wells Fargo Bank, N.A., 670 Fed.Appx. 670, 671 (10th Cir. 2016)). While ERISA's civil enforcement statute allows a plan participant or beneficiary to sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits, ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), that is not the relief requested in Count I. LMHS only seeks a declaration under the federal Declaratory Judgment Act, 28 U.S.C. § 2201. This is highlighted by LMHS’s prior pleading whereby LMHS sought declaratory relief under both ERISA as well as the Declaratory Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 4 of 17 PageID 516 5 Judgment Act. See, ECF No 1-1 at ¶ 29 (“This is an action for declaratory relief under the Employee Retirement Income Security Act of 1974…and under the Declaratory Judgment Act….”). See also, Cagle v. Bruner, 921 F. Supp. 726, 731 (M.D. Fla. 1995), aff'd and remanded, 112 F.3d 1510 (11th Cir. 1997) (“Plaintiffs’ first claim is against Defendant Genesis, and pursuant to 29 U.S.C. § 1132(a)(3) and 28 U.S.C. § 2201, seeks a declaratory judgment pronouncing that “the Fund shall not be required to process Bruner's claim for benefits unless and until the subrogation agreement provided by the fund to Bruner is executed without modification.” (emphasis added). There is no allegation in the operative pleading that LMHS seeks a declaration under the ERISA remedy system. Clearly, LMHS understood the distinction between the two theories of recovery when it asserted both in its initial Complaint. Therefore, LMHS’s claim against Florida Blue is subject to analysis under the Declaratory Judgment Act. B. LMHS’s Claim For Declaratory Relief Improperly Attempts To Inject State Law Causes Of Action Into This ERISA Controversy. LMHS seeks a declaration of its rights under the Declaratory Judgment Act for violations of “ERISA, the Plan and the Agreement.” Amended Complaint at ¶ 37. In so doing, LMHS alleges that Florida Blue violated the Plan by denying benefits and refusing to issue payment. Id. at ¶ 39. LMHS wants to be excused from its duty to exhaust administrative remedies because the denial notice was purportedly inadequate. Id. at ¶¶ 41 and 43. LMHS is attempting to inject state law claims into this ERISA action. This is crystalized by LMHS’s assertion that this Court possesses “supplemental jurisdiction as to any other related claims of [LMHS] pursuant to 28 U.S.C. § 1367(a).” Id. at ¶ 5. This Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 5 of 17 PageID 517 6 allegation of supplemental jurisdiction would be unnecessary if LMHS only sought relief pursuant to ERISA’s exclusive civil remedy system. The fact that LMHS alleges “supplemental jurisdiction” signals that (in LMHS’s estimation) some state-law claim is conceivably available. However, ERISA preempts any such claim. Amos v. Blue Cross and Blue Shield, 868 F.2d 430, 431 (11th Cir.), cert. denied, 493 U.S. 855, 110 S.Ct. 158, 107 L.Ed.2d 116 (1989) (“We hold that ERISA preemption is not a gateway but a barrier to state law causes of action, the effect of which is to completely displace state law claims.”). Additionally, within its claim for declaratory relief, LMHS appears to plead the elements required to maintain an action for declaratory relief under Florida law. Specifically, LMHS alleges that the “parties are in genuine doubt as to their rights under ERISA, the Plan and the Agreement and are entitled to have such doubt removed by declaration of this Court.” These allegations embrace the language of a state-law claim for declaratory relief. Id. at ¶ 45.2 LMHS’s alleged uncertainty of its rights under the Agreement illustrates the hospital’s intent to enforce a contract between the parties under state-law principles. The elements necessary to maintain an action under the Florida Declaratory Judgment Act, Florida Statutes, § 86.011, are not controlling. The Eleventh Circuit instructs that the Florida Declaratory Judgment Act “does not confer any substantive rights,” but is instead “a procedural mechanism that confers subject matter jurisdiction on Florida's circuit and county counts.” Coccaro v. Geico Gen. Ins. Co., 648 Fed.Appx. 876, 881 (11th Cir. 2 Florida law requires that a party seeking declaratory relief must allege “a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; the plaintiff's doubt about the existence or non-existence of his rights or privileges; [and] that he is entitled to have the doubt removed.” Chen v. Cayman Arts, Inc., 757 F. Supp. 2d 1294, 1302 (S.D. Fla. 2010). Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 6 of 17 PageID 518 7 2016) (citing Manuel v. Convergys Corp., 430 F.3d 1132, 1138, n.3 (11th Cir. 2005). See also, Nirvana Condo. Ass'n v. QBE Ins. Corp., 589 F. Supp. 2d 1336, 1343 n.1 (S.D. Fla. 2008) (finding that Florida's Declaratory Judgment Act is a “procedural mechanism” and applying the federal Declaratory Judgment Act). Thus federal courts cannot apply the Florida statute to determine whether or not a federal declaratory action can survive a motion to dismiss (citing McMahon v. Toto, 256 F.3d 1120, 1131–32 (11th Cir. 2001)) (applying Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). See also, Ministerio Evangelistico Int'l v. United Specialty Ins. Co., No. 16-25313-CIV, 2017 WL 1363344, at *1 (S.D. Fla. Apr. 5, 2017) (“Because declaratory relief presents a procedural issue, this Court construes Ministerio's claim for declaratory relief under the federal Declaratory Judgment Act, 28 U.S.C. § 2201.”). C. LMHS Failed To Plead A Continuing Controversy Between The Parties Consistent with the cases and controversies requirement of Article III of the United States Constitution, the federal Declaratory Judgment Act “specifically provides that a declaratory judgment may be issued only in the case of an actual controversy.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999) (internal citations and quotations omitted). Thus, in order for this Court to have jurisdiction to issue a declaratory judgment, LMHS “must assert a reasonable expectation that the injury [it has] suffered will continue or will be repeated in the future.” Id. The facts alleged must establish a “substantial continuing controversy between two adverse parties.” Id. (internal citations omitted)(emphasis added). The “continuing controversy” must be “real and immediate” and Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 7 of 17 PageID 519 8 must “create a definite, rather than speculative threat of future injury.” Id. (internal citations and quotation marks omitted). Here, LMHS seeks a declaration that: (1) LMHS is entitled to benefits for services rendered during a distinct period of time in 2013; (2) the denial of benefits letter concerning October 2013 dates of service was insufficient; and (3) LMHS was not required to exhaust its administrative remedies under the Winn Dixie Plan. The request for a declaration rests entirely on past harm. The Amended Complaint is devoid of any allegations of prospective harm. This is fatal to LMHS’s request for a declaratory judgment. See, Mical v. Gold Coast Glass Corp., No. 13-23014-CIV, 2014 WL 266301, at *2 (S.D. Fla. Jan. 13, 2014)(dismissing a declaratory relief claim where there was “an absence of prospective harm.”) In re Managed Care Litig., No. 00-1334-MD, 2009 WL 7848517, at *8 (S.D. Fla. Mar. 27, 2009) (“A party seeking a declaratory judgment must allege facts in a complaint from which it appears that there is a substantial likelihood that it will suffer injury in the future.”). LMHS makes no allegation that Florida Blue’s purported conduct “has continued or will be repeated in the future.” Merritt v. Godfrey, No. 3:13CV607/LAC/EMT, 2015 WL 5439306, at *10 (N.D. Fla. Aug. 10, 2015), report and recommendation adopted, No. 3:13CV607/LAC/EMT, 2015 WL 5440570 (N.D. Fla. Sept. 19, 2015). The mere possibility that Florida Blue could undertake the same actions at some time in the future is “too remote to be labeled a controversy.” Id. In Sierra Equity Group. Inc. v. White Oak Equity Partners, LLC, the plaintiffs brought several counts against the defendant including a count for declaratory relief. 650 F. Supp. 2d 1213, 1231 (S.D.Fla.2009). The plaintiffs asked the Court to “make factual Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 8 of 17 PageID 520 9 determinations regarding possible breaches of contract and tortious acts that [defendant] is alleged to have committed in the past.” Id. The Court dismissed the claim for declaratory relief because it found that the request did not seek relief that “would lead to a change in conduct by either party” and the Court would “need to make various factual determinations regarding the past conduct of the parties.” Id. The Sierra Equity court found that bringing claims only relevant to past conduct, without alleging prospect of future harm “failed to allege sufficiently a basis upon which declaratory relief would be granted.” Id. Similarly, in Mech v. Sch. Bd. of Palm Beach Cty., No. 13-80437-CIV, 2014 WL 12650695, at *2 (S.D. Fla. Oct. 17, 2014), the plaintiff asserted a claim under the Declaratory Judgment Act and set forth four bases for his purported need for a declaration. The Court found that all of the requested declarations related to past conduct that would necessarily be adjudicated in his other causes of action. The Court summarized as follows: Plaintiff seeks a declaration that Defendant's “removing” his banners violated his First and Fourteenth Amendment rights []. This relates to a past act of Defendant and will be resolved by adjudicating Plaintiff's entitlement to damages for Counts I (First Amendment), II (Fourteenth Amendment), and III (Fourteenth Amendment). The same is true for the other declarations: each stems from Plaintiff's prior dealings with Defendant (i.e., whether the advertising agreements were “indeed legally enforceable contracts”; whether Defendant utilized school board policies in a manner that violated the Fourteenth Amendment; and whether Defendant “has denied equal access to” and “discriminated against” Plaintiff []. Id. (emphasis added). See also, Best Jewelry Mfg. Co., Inc. v. Reed Elsevier Inc., No. 1:16- CV-1761-TWT, 2017 WL 1134449, at *4 (N.D. Ga. Mar. 27, 2017)(“The Declaratory Judgment Act—28 U.S.C. § 2201—is inappropriate to adjudicate past conduct. The Plaintiff's Complaint is completely devoid of any allegations relating to ongoing or future conduct.”) (internal quotations and citations omitted). As the Mech court observed, “the Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 9 of 17 PageID 521 10 purpose of a declaratory judgment is not to address past wrongs but to settle actual controversies “before they ripen into violations of law or a breach of contractual duty.” Id. (quoting 10B Wright & Miller, Federal Practice and Procedure § 2751 (3d ed. 1998)). LMHS’s Amended Complaint does not allege a continuing controversy between the parties. Count I should be dismissed on this basis alone. D. LMHS’s Count For Declaratory Relief Is Duplicative Of Its Cause Of Action For Violation Of ERISA And The Plan LMHS’s request for declaratory relief in Count I is also subject to dismissal because it duplicates the relief that LMHS pursues in Count II. In Count II of the Amended Complaint, LMHS alleges its entitlement to “receive payment for the hospital services that it provided to [S.A.] and to enforce its rights under the terms of the Plan and ERISA.” Amended Complaint at ¶ 48. By excluding Florida Blue from its claim for benefits in Count II, LMHS apparently recognizes that Florida Blue is not a proper party to such a claim under a self-funded employee welfare benefit plan. See Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) (finding that a claims administrator is not a proper party defendant when the claims administrator lacked discretionary authority over the Plan and exclusive responsibility for the Plan resided with the employer); Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 908 (11th Cir. 1997) (concluding that, under § 502(a)(1)(B), an “order enjoining the payment of benefits from an ERISA plan must issue against a party capable of providing the relief requested.”) Count II of the Amended Complaint evidences the true nature of this action and sheds light on the inherent flaw in LMHS’s first cause of action. LMHS could have sought a declaration of its rights due to a “violation of ERISA” under the ERISA remedy system. Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 10 of 17 PageID 522 11 Instead, it chose to plead under the Declaratory Judgment Act. LMHS’s request to obtain benefits and enforce the Agreement, the Plan and the ERISA statute under the Declaratory Judgment Act makes clear the duplicative nature of the two counts. LMHS and Florida Blue are involved in another ERISA benefits dispute where LMHS tried to use the Agreement to trigger Florida Blue’s payment obligation under a self- funded ERISA plan. See Lee Memorial Health System v. Blue Cross and Blue Shield of Florida, et.al., 00910-SPC-MRM, ECF 1-2 at ¶ 9. As Florida Blue argued in a successful opposition to remand, the network Agreement did not - in and of itself - entitle LMHS to any payment. Rather, entitlement to benefits depended on whether the services were covered within the meaning of the underlying ERISA plan. If the services are excluded by the applicable ERISA plan, then no health plan benefits are available. In other words, the ERISA plan is critical and must be examined in order to resolve this controversy. The Winn Dixie benefit plan document houses the exclusion that LMHS challenges. That exclusion within the ERISA plan is what governs the right to payment in this case. In Montefiore Medical Center v. Teamsters Local 272, 642 F.3d 321, 325 (2d Cir. 2011), the Second Circuit explained that “claims that implicate coverage and benefits established by the terms of the ERISA benefit plan” are “right to payment” claims which can be brought under ERISA’s civil remedy provision, 29 U.S.C. § 1132(a)(1)(B). By contrast, “claims regarding the computation of contract payments or the correct execution of such payments” are typically construed as “amount of payment” claims which can be resolved outside the ERISA remedy system because such disputes only touch upon the rate of payment for a service that is undeniably “covered” by the relevant health plan. Id. at 331 Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 11 of 17 PageID 523 12 (emphasis added). The Montefiore court found that the plaintiffs' claims for reimbursement were claims for the “right to payment” because they “implicate coverage determinations under the relevant terms of the Plan, including denials of reimbursement because pre- certification is required, ... the services were not covered under the plan, or ... the member is not eligible.” Id. The court did not consider the claims to be “amount of payment” claims because the plaintiffs did not allege “underpayment or untimely payment, where the basic right to payment has already been established and the remaining dispute only involves obligations derived from a source other than the Plan.” Id. This lawsuit does not involve a mere disagreement over how much is owed. Rather, the Amended Complaint reveals a profound dispute over the threshold coverage question. LMHS’s entire pleading shows no benefits were paid due to a dispute over whether the services are excluded by the terms of the Winn Dixie Plan - not how much is owed for a service that is understood by all parties to be covered. Since the Winn Dixie Plan prohibits the payment of benefits in connection with an injury resulting from alcohol intoxication, the ERISA Plan forms an essential part of LMHS’s claims. See e.g., Plastic Surgery Grp., P.C. v. United Healthcare Ins. Co. of N.Y., 64 F. Supp. 3d 459, 467 (E.D.N.Y. 2014) (finding ERISA preemption of medical provider’s state-law claims and rejecting the provider’s “rate of payment” characterization of the controversy where “there is no question that the Court will need to interpret the language of the [ERISA] Plan to resolve this dispute.”); Ambulatory Infusion Therapy Specialists, Inc. v. Aetna Life Ins. Co., 2006 WL 1663752, at *8 (S.D. Tex. June 13, 2006) (“Because the dispute is not ‘the applicable rate of payment, ... but rather ‘whether the services themselves were ... otherwise covered under the [ERISA] Plan,’ the Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 12 of 17 PageID 524 13 claim is dependent on the Plan and completely preempted by ERISA.”) (quoting Tenet Healthsystem Hosps., Inc. v. Crosby Tugs, Inc., No. Civ. A. 04–1632, 2005 WL 1038072, at *3 (E.D.La. Apr. 27, 2005)). Against this backdrop, the district court in Lee Memorial found that LMHS’s Agreement was nothing more than a “distractor.” The provider contract did not inform on whether LMHS was entitled to benefits under ERISA. 2:16-cv-00910-SPC-MRM, ECF No. 45 at p. 15 (M.D. Fla. March 30, 2017). The existence of the ERISA Plan, and not the provider contract, gives rise to the duty to pay. Id. LMHS’s request to interpret the Agreement is a clear attempt to circumvent the ERISA remedy system. LMHS is trying to enable some state-law pathway to relief by invoking its own Agreement. That objective has already been rejected by another court in this District presiding over an ERISA action involving the same parties herein. ERISA prohibits LMHS from trying to proceed under any state-law theory of recovery designed to rectify the denial of employee welfare plan benefits. Aetna Health Inc. v. Davila, 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). (“[A]ny state-law cause of action that duplicates, supplements or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.”) Where, as here, a claim for declaratory relief is duplicative of a claim for breach of the ERISA plan, the Declaratory Judgment Act claim is ripe for dismissal. See Tuohig v. Principal Ins. Grp., 134 F. Supp. 2d 148, 152 (D. Mass. 2001) (“The Complaint does not allege that the plaintiffs are entitled to future benefits under the plan. Rather, they seek reimbursement for medical expenses incurred from December 1, 1997 through June 30, Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 13 of 17 PageID 525 14 1998. Because the plaintiffs' requests for declaratory judgment appear to be superfluous in light of their request for compensation in Count One, the motion to dismiss as to Count Four will be allowed.”). Since LMHS “requested clarification of [its] rights in other ERISA counts in [its] complaint[,]” its count for declaratory relief must be dismissed. Id. See also Miller v. Hartford Life & Acc. Ins. Co., No. CIV.A. 7:06-CV-88, 2007 WL 1287694, at *4 (M.D. Ga. May 1, 2007) (dismissing declaratory relief action because it was duplicative of ERISA claim and finding that the declaratory judgment “relates directly to the Policy and whether Hartford's denial of benefits was proper.”). LMHS’s claim for breach of the Plan under ERISA is comparable to a breach of contract action. When met with a declaratory judgment count that seeks identical relief through a breach of contract count, courts dismiss the redundant request for declaration of rights. Miami Yacht Charters, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh Pa., No. 11- 21163-CIV, 2012 WL 1416428, at *2 (S.D. Fla. Apr. 24, 2012) (“A court must dismiss a claim for declaratory judgment if it is duplicative of a claim for breach of contract and, in effect, seeks adjudication on the merits of the breach of contract claim.”); See also, Se. Distributors, Inc. v. United Specialty Ins. Co., No. 16-24549-CIV, 2017 WL 960300, at *5 (S.D. Fla. Mar. 13, 2017)(“The Plaintiff has not pointed to any declaratory relief that it cannot obtain through resolution of its breach of contract claim. Thus, the declaratory relief is subsumed in the breach of contract claim and superfluous.”); Perret v. Wyndham Vacation Resorts, Inc., 889 F. Supp. 2d 1333, 1346 (S.D. Fla. 2012) (“[A] court should not entertain an action for declaratory relief when the issues are properly raised in other counts of the pleadings and are already before the court.”); Regency of Palm Beach, Inc. v. QBE Ins. Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 14 of 17 PageID 526 15 Corp., No. 08-81442, 2009 WL 2729954 (S.D. Fla. Aug. 25, 2009) (dismissing portions of declaratory judgment count because damages will be resolved in the breach of contract count). In Se. Distributors, Inc. v. United Specialty Ins. Co., No. 16-24549-CIV, 2017 WL 960300 (S.D. Fla. Mar. 13, 2017), the plaintiff’s complaint included counts for both declaratory relief and breach of contract. Id. at *6. In its count for declaratory relief, the plaintiff alleged that a controversy existed with regard to the losses covered under the insurance policy and the expenses incurred as a result of the loss. Id. The Court noted that these were the same issues raised in the breach of contract count which alleged that the insurer breached the contract by failing to pay under the insurance contract. The Court found that the plaintiff would “be able to obtain all of the relief that it seeks through the resolution of the breach of contract count of the Complaint. The Plaintiff has not pointed to any declaratory relief that it cannot obtain through resolution of its breach of contract claim.” Id. Thus, the Court held that “the declaratory relief is subsumed in the breach of contract claim and superfluous” and that dismissal of that count was warranted. Id. See also, Ministerio Evangelistico Int'l v. United Specialty Ins. Co., No. 16-25313-CIV, 2017 WL 1363344, at *2 (S.D. Fla. Apr. 5, 2017)(“A determination of the breach of contract claim involves the same actual dispute as the declaratory relief claim, namely, to what extent the water damage is covered by the insurance policy. In other words, Ministerio will be able to secure full, adequate and complete relief through the breach of contract claim.”); Berkower v. USAA Cas. Ins. Co., No. 15-23947-CIV, 2016 WL 4574919, at *5 (S.D. Fla. Sept. 1, 2016) (By requesting a declaration with respect to “the losses, costs, or expenses incurred as a result of Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 15 of 17 PageID 527 16 the subject loss[,]…Plaintiffs are effectively seeking a judgment concerning the amount of damages –– relief already fully accessible to Plaintiffs under their breach-of-contract claim. The Undersigned accordingly finds that this declaratory action must be dismissed.”) (emphasis in original) (internal quotations omitted). III. CONCLUSION LMHS’s claim for declaratory relief is flawed. It does not allege any continuing harm. Furthermore, the controversy under the Declaratory Judgment Act can be adjudicated under the ERISA remedy system. Finally, Plaintiff cannot supplement its exclusive ERISA remedy by asserting (baldly) that supplemental jurisdiction exists over state-law claims. For each of these reasons, LMHS’s Amended Complaint must be dismissed as to Florida Blue. Respectfully submitted this 23rd day of February, 2017 s/ Daniel Alter Daniel Alter, Esq., Florida Bar No. 0033510 Email: dan.alter@gray-robinson.com GRAY ROBINSON, P.A. 401 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone: (954) 761-8111 Counsel for Defendant Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 16 of 17 PageID 528 17 \821502\234 - # 4692277 v1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of May, 2017, I have electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on Joel W. Walters, Esquire, Walters Levine, P.A., 1819 Main Street, Suite 1110, Sarasota, Florida 34236, Telephone: (941) 364-8787, email: jwalters@walterlevine.com, counsel for Plaintiff, in the manner specified, either via transmission of Notices of Electronic filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Daniel Alter____________ Daniel Alter, Esq., Florida Bar No. 0033510 Email: dan.alter@gray-robinson.com GRAYROBINSON, P.A. 401 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone: (954) 761-8111 Facsimile: (954) 761-8112 Counsel for Defendant Case 2:16-cv-00738-JES-CM Document 19 Filed 05/24/17 Page 17 of 17 PageID 529