Lemoine v. Empire Blue Cross Blue Shield et al

REPLY BRIEF to Opposition to Motion

D.N.J.January 23, 2017

TROUTMAN SANDERS LLP 875 Third Avenue New York, NY10022 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 Attorneys for Defendant Empire HealthChoice Assurance, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY --------------------------------------------------------------------X CHARLENE A. LEMOINE, CIVIL ACTION NO.: 2:16-cv-06786-JMV-JBC Hon. John Michael Vazquez Plaintiff, -against- Document Electronically Filed EMPIRE BLUE CROSS BLUE SHIELD AND XYZ CORPS. 1-10 (said names being fictitious and unknown), Defendants. --------------------------------------------------------------------X DEFENDANT EMPIRE HEALTHCHOICE ASSURANCE, INC.’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS MOTION TO DISMISS Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 1 of 13 PageID: 273 i TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT ................................................................................................... 1 ARGUMENT................................................................................................................................. 2 I. Plaintiff Should Not Be Granted Leave To Amend Because She Cannot Allege That She Exhausted Administrative Remedies Or Doing So Was Futile. ..................................................................................................................... 2 A. Plaintiff Argues That She Has Pending Appeals; An Unequivocal Acknowledgement That She Has Not Exhausted Administrative Remedies And Doing So Was Not Futile. ................................................. 3 II. Plaintiff’s Description Of The Plan’s Language To Argue That The Administrative Remedies Process Was Not Mandatory Or Exclusive Is Incorrect And Irrelevant......................................................................................... 5 B. Plaintiff’s Appeals Are Untimely. ............................................................. 7 III. Plaintiff’s Demand For A Jury Trial Should Be Stricken...................................... 8 IV. Plaintiff Should Not Be Granted Leave To Amend............................................... 8 CONCLUSION.............................................................................................................................. 9 Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 2 of 13 PageID: 274 ii TABLE OF AUTHORITIES Page(s) CASES ALA, Inc. v. CCAIR, Inc. 29 F.3d 855 (3d Cir. 1998).........................................................................................................6 Bennett v. Prudential Ins. Co., 192 F. App’x 153 (3d Cir. 2006) ...............................................................................................3 D’Alessandro v. Hartford Life & Accident Ins. Co., No. 09-1115, 2009 U.S. Dist. LEXIS 37048 (JAP) (D.N.J. May 1, 2009)................................8 D’Amico v. CBS Corp., 297 F.3d 287 (3d Cir. 2002)...................................................................................................3, 6 Dunn v. Honeywell Int’l, Inc., No. 11-cv-2810 (DMC)(CLW), 2012 U.S. Dist. LEXIS 191170 (D.N.J. Oct. 4, 2012) .......6, 7 Early v. U.S. Life Ins. Co., 222 F. App’x 149 (3d Cir. 2007) ...............................................................................................3 Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244 (3d Cir. 2002)............................................................................................. passim Kesselman v. The Rawlings Co., LLC, 668 F. Supp. 2d 604 (S.D.N.Y. 2009)........................................................................................8 Killian v. Johnson & Johnson, No. 07-4902 (GEB), 2008 U.S. Dist. LEXIS 6329 (D.N.J. Jan. 28, 2008) ...............................8 Menendez v. United Food & Commercial Workers Local888 Health Fund, No. 05-CV-1165 (WJM), 2005 U.S. Dist. LEXIS 17034 (D.N.J. Aug. 11, 2005)................3, 5 Montvale Surgical Ctr., LLC v. Horizon Blue Cross Blue Shield of N.J., Inc., No. 12-3685 (SRC), 2013 U.S. Dist. LEXIS 15327 (D.N.J. Feb. 5, 2013) ...............................8 Morillo v. 1199 SEIU Benefit and Pension Funds, 783 F. Supp. 2d 487 (S.D.N.Y. 2011)........................................................................................8 Poole v. Monmouth Coll., 603 A.2d 118 (N.J. Super. Ct. Ch. Div. 1991)...........................................................................2 Stanley v. IBEW, 207 F. App’x 185 (3d Cir. 2006) ...........................................................................................3, 6 Stapperfenne v. Nova Healthcare Adm’rs, Inc., No. 05-4883 (RBK), 2006 U.S. Dist. LEXIS 20711 (D.N.J. Apr. 17, 2006) ............................5 Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 3 of 13 PageID: 275 iii Util. Workers Union of Am., Local 601 v. Pub. Serv. Elec. & Gas, No. 07-2378 (WJM), 2009 U.S. Dist. LEXIS 9657 (D.N.J. Feb. 10, 2009)..........................3, 6 Wolf v. Nat’l Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984).......................................................................................................2 STATUTES 29 U.S.C. § 1001, et seq...................................................................................................................1 29 U.S.C.A. § 1132(a)(1).................................................................................................................6 OTHER AUTHORITIES Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ......................................................1, 2, 5, 9 Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 4 of 13 PageID: 276 This reply memorandum of law is respectfully submitted on behalf of Defendant Empire HealthChoice Assurance, Inc. (“Empire”), by its counsel, in further support of its motion for an order dismissing Plaintiff Charlene A. Lemoine’s (“Plaintiff”) Complaint, in its entirety, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). PRELIMINARY STATEMENT As an initial matter, Plaintiff concedes that her claim is governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., and that the Complaint should be dismissed. (See Opp’n, Dkt. No. 15, pp. 1, 5). Thus, the only issue remaining is whether Plaintiff can amend her Complaint to allege that she exhausted administrative remedies or that doing so would be futile. It is evident from Plaintiff’s opposition that no amendment can or will be successful. First, Plaintiff’s failure to exhaust administrative remedies prior to filing the Complaint is not only a “pleading deficiency,” but is a substantive deficiency that cannot be cured by an amendment. As explicitly stated in her opposition, Plaintiff is still pursuing appeals with Empire. (See Opp’n, Dkt. No. 15, pp. 7-8). Indeed, Exhibits 7 and 8 to Plaintiff’s opposition are alleged to be appeals sent to Empire on December 19, 2016 and December 28, 2016, despite the lawsuit being initiated in April 19, 2016, and Empire’s motion to dismiss being filed in November 16, 2016. Plaintiff’s opposition and the “evidence” attached thereto cut against any argument that Plaintiff has, in fact, exhausted administrative remedies. The law is clear. Administrative remedies must be exhausted prior to filing a lawsuit under ERISA, an issue that Plaintiff acknowledges outright. (Opp’n, Dkt. No. 15, p. 6: “Case law has determined that exhaustion of administrative remedies is a prerequisite to a civil suit.”). Plaintiff cannot concurrently pursue an administrative appeal and this lawsuit. Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 5 of 13 PageID: 277 2 Second, Plaintiff cannot (and does not) suggest that she can assert allegations to support futility. And, the fact that Plaintiff is still allegedly pursuing appeals forecloses a “futility” argument. Lastly, Plaintiff’s arguments that the Plan does not contain a mandatory appeals process are inapposite to the terms contained in the Plan and contrary to established law, as described at length in Empire’s opening brief. For these reasons, and those that follow, the Complaint should be dismissed in its entirety, with prejudice, pursuant to Rule 12(b)(6) of the FRCP. ARGUMENT I. Plaintiff Should Not Be Granted Leave To Amend Because She Cannot Allege That She Exhausted Administrative Remedies Or Doing So Was Futile. Plaintiff concedes, based on law in the Third Circuit, “that exhaustion of administrative remedies is a prerequisite to a civil suit” under ERISA. (Opp’n, Dkt. No. 15, p. 6). Plaintiff also concedes that she must either plead that “she had exhausted administrative remedies or that such remedies were futile in her case.” Id. at p. 7. Plaintiff further concedes that the operative Complaint does not contain these allegations. Id.. Plaintiff attempts to pivot and argues that she should be granted leave to amend the Complaint to add such allegations to support a claim under ERISA; yet, Plaintiff does not provide any basis on how she plans to formulate such allegations. It is clear from Plaintiff’s opposition that she will not be able to allege that she has exhausted administrative remedies or that doing so was futile. Plaintiff’s failure to exhaust administrative remedies is fatal to any possible ERISA claim she intends to assert. In New Jersey, the law is established: a plaintiff must exhaust all remedies available under an ERISA-governed health benefits plan before bringing a civil action for benefits. See Poole v. Monmouth Coll., 603 A.2d 118, 120-21 (N.J. Super. Ct. Ch. Div. 1991) (citing Wolf v. Nat’l Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984)); Kellerman v. Virtua Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 6 of 13 PageID: 278 3 W. Jersey Hosp., Case No. A-5926-07T3, 2009 N.J. Super. Unpub. LEXIS 2075, at *11-12 (App. Div. Aug. 4, 2009) (“Exhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle.”) (citation omitted); Early v. U.S. Life Ins. Co., 222 F. App’x 149, 153 n.7 (3d Cir. 2007); Stanley v. IBEW, 207 F. App’x 185, 189 (3d Cir. 2006); D’Amico v. CBS Corp., 297 F.3d 287, 293 (3d Cir. 2002); Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 249 (3d Cir. 2002); see also Util. Workers Union of Am., Local 601 v. Pub. Serv. Elec. & Gas, No. 07-2378 (WJM), 2009 U.S. Dist. LEXIS 9657, at *9 (D.N.J. Feb. 10, 2009) (“The Third Circuit has long held that ‘except in limited circumstances’... a [] court will not entertain an ERISA claim unless the plaintiff has exhausted the remedies available under the plan.”) (citation omitted). This exhaustion requirement is not optional; instead, it is “strictly enforced,” Util. Workers Union, 2009 U.S. Dist. LEXIS 9657, at *10, and may only be excused where the plaintiff provides a “clear and positive showing” that any further attempt to pursue administrative remedies would be futile. See Bennett v. Prudential Ins. Co., 192 F. App’x 153, 156 (3d Cir. 2006) (quoting Harrow, 279 F.3d at 249). As such, a plaintiff must plead either facts establishing that it has exhausted the plan’s administrative claims procedures or allege facts demonstrating that doing so would be futile. See Menendez v. United Food & Commercial Workers Local888 Health Fund, No. 05-CV-1165 (WJM), 2005 U.S. Dist. LEXIS 17034, at *7 (D.N.J. Aug. 11, 2005) (dismissing the plaintiff’s ERISA claim at the pleading stage for failure to exhaust administrative remedies). Accordingly, the Court should deny Plaintiff leave to amend her Complaint. A. Plaintiff Argues That She Has Pending Appeals; An Unequivocal Acknowledgement That She Has Not Exhausted Administrative Remedies And Doing So Was Not Futile. Plaintiff explains that just last month she filed two “appeals of adverse determinations from July 26, 2016 and September 14, 2016.” (Opp’n, Dkt. No. 15, p. 5). This clearly and Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 7 of 13 PageID: 279 4 unequivocally shows that she is still pursuing administrative remedies. First, Exhibit 7 to Plaintiff’s opposition is a purported appeal letter dated December 19, 2016 for services rendered in April 2015. (Opp’n, Dkt. No. 15, Ex. 7). Here, the Complaint was filed on April 19, 2016 and Empire’s motion to dismiss was filed in November 2016; thus, Plaintiff sent this alleged appeal 8 months after the lawsuit was initiated and a month after Empire filed its motion to dismiss. Id. Second, Exhibit 8 to Plaintiff’s opposition is a purported appeal letter dated December 28, 2016 for services rendered in April 2015. (Opp’n, Dkt. No. 15, Ex. 8). This alleged appeal letter was sent more than 8 months after the lawsuit was initiated, a month after Empire filed its motion to dismiss, and six days before Plaintiff filed her opposition. Id. Moreover, at the time the alleged appeal letters were sent, Plaintiff’s counsel had a copy of the Plan, as it was attached to Empire’s motion. Plaintiff cannot, in good faith, allege that she has exhausted all administrative remedies under the Plan. (Mov. Br., Ex. A, pp. 47-53). Nor, for that matter, can she allege that she exhausted administrative remedies prior to Empire filing its motion to dismiss. In addition, Plaintiff admits that a number of her initial appeals were denied as untimely, showing that she did not follow the administrative procedures in the Plan. (Opp’n, Dkt. No. 15, p. 3: “Defendant rejected others as untimely.”). Plaintiff’s failure to exhaust administrative remedies cannot, now, be excused based on the idea that “such exhaustion is futile.” See Harrow, 279 F.3d at 249. “Whether to excuse exhaustion on futility grounds rests upon weighing several factors, including: (1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate judicial review under the circumstances; (3) existence of a fixed policy denying benefits; (4) failure of the insurance company to comply with its own internal administrative procedures; and (5) testimony of plan administrators that any administrative appeal was futile.” Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 8 of 13 PageID: 280 5 Id. at 250. Since Plaintiff is allegedly still attempting to pursue benefits under the Plan’s administrative procedures, the very idea of futility as an “excuse” for failure to exhaust administrative remedies makes no sense. Further, since she is attempting to pursue administrative remedies using Empire’s administrative procedures, none of the factors identified above would support an argument for futility. Allegations of exhaustion and futility cannot be argued at the same time and Plaintiff’s attempt to do so shows a fundamental misunderstanding of the law. “In ERISA cases regarding claims for benefits, courts have found that a failure to exhaust administrative remedies may constitute grounds for dismissal pursuant to both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).” Stapperfenne v. Nova Healthcare Adm’rs, Inc., No. 05- 4883 (RBK), 2006 U.S. Dist. LEXIS 20711, at *6 (D.N.J. Apr. 17, 2006) (collecting cases); Menendez, 2005 U.S. Dist. LEXIS 17034, at *7 (granting defendant’s Rule 12(b)(6) motion to dismiss because the plaintiff failed to exhaust his administrative remedies before bringing an ERISA benefits claim). Courts dismiss ERISA cases at the motion to dismiss stage in connection with a defendant’s argument that a plaintiff has failed to exhaust administrative remedies. See, e.g., Stapperfenne, 2006 U.S. Dist. LEXIS 20711, at *6-11. Any amendment to the Complaint that Plaintiff seeks to make, will result in a subsequent and meritorious motion to dismiss by Empire. For these reasons, Plaintiff should not be granted leave to amend her Complaint. II. Plaintiff’s Description Of The Plan’s Language To Argue That The Administrative Remedies Process Was Not Mandatory Or Exclusive Is Incorrect And Irrelevant. Plaintiff takes issue with the fact that the language in the plan does not use language mandating that an individual file an appeal. (See Opp’n, Dkt. No. 15, pp. 3-4). However, there is no requirement that individual has to appeal a denial of benefits—whether a person wants to Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 9 of 13 PageID: 281 6 accept the decision or appeal the decision is entirely up to them. See Harrow, 279 F.3d at 249 (emphasizing that “[c]ourts require exhaustion of administrative remedies to help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all concerned”) (internal quotations omitted). The Plan language that Plaintiff cites is simply irrelevant to settled Third Circuit law, which requires a plaintiff to exhaust all remedies available under an ERISA-governed health benefits plan before bringing a civil action for benefits. See Stanley, 207 F. App’x at 189; D’Amico, 297 F.3d at 293. Plaintiff concedes that this is the standard in the Third Circuit even though “neither the statute, 29 U.S.C.A. § 1132(a)(1), nor [Plaintiff]’s insurance policy says that.” (See Opp’n, Dkt. No. 15 at 6.) No matter how Plaintiff attempts to argue around it, under Third Circuit law, the exhaustion requirement is not option; instead, it is “strictly enforced.” Util. Workers Union, 2009 U.S. Dist. LEXIS 9657, at *10. In Dunn v. Honeywell Int’l, Inc., No. 11-cv-2810 (DMC)(CLW), 2012 U.S. Dist. LEXIS 191170 (D.N.J. Oct. 4, 2012), Judge Cavanaugh, on a motion for reconsideration, granted the defendants’ motions to dismiss, dismissing the plaintiff’s complaint based on an argument raised by the defendants that the plaintiff failed to exhaust administrative remedies and lack of futility. There, the court, in dismissing the plaintiff’s complaint, held that “[w]here there is a disparity between a written instrument annexed to a pleading and an allegation in the pleading based thereon, the written instrument will control.” Dunn, 2012 U.S. Dist. LEXIS 191170, at *16 (quoting ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1998)). Much like in Dunn, the documentary evidence attached to Plaintiff’s opposition contradicts Plaintiff’s intended allegations about exhaustion and futility. Thus, Empire “should not be forced to continue to Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 10 of 13 PageID: 282 7 litigate this matter, consuming vast amounts of time and money” when an amendment to the Complaint will be without merit. Id. at *21-22. As described above, given the circumstances, Plaintiff cannot amend her Complaint to allege either exhaustion or futility. See Harrow, 279 F.3d at 250-52 (futility exception did not apply because the plaintiff could not establish that the appeals process was predetermined). Accordingly, the Court should dismiss the Complaint without leave to amend. B. Plaintiff’s Appeals Are Untimely. As stated earlier, Exhibits 7 and 8 to Plaintiff’s opposition are purported appeals sent to Empire on December 19, 2016 and December 28, 2016, despite the lawsuit being initiated in April 19, 2016, and Empire’s motion to dismiss being filed in November 16, 2016. Further, Plaintiff admits that a number of her initial appeals were denied as untimely, showing that she did not follow the administrative procedures. (Opp’n, Dkt. No. 15, p. 3: “Defendant rejected others as untimely.”). The Plan provides: A. Grievances. Our Grievance procedure applies to any issue not relating to a Medical Necessity or experimental or investigational determination by Us. For example, it applies to contractual benefit denials or issues or concerns You have regarding Our administrative policies or access to providers. B. Filing a Grievance. You can contact Us by phone at the number on Your ID card, in person, or in writing to file a Grievance. You may submit an oral Grievance in connection with a denial of a Referral or a covered benefit determination. We may require that You sign a written acknowledgement of Your oral Grievance, prepared by Us. You or Your designee has up to 180 calendar days from when You received the decision You are asking Us to review to file the Grievance. D. Grievance Appeals. If You are not satisfied with the resolution of Your Grievance, You or Your designee may file an Appeal by phone at the number on Your ID card, in person, or in writing. You have up to 60 business days from receipt of the Grievance determination to file an Appeal. (Mov. Br., Ex. A, pp. 45-46). Exhibit 4 to Plaintiff’s opposition, starting three pages from the front, contains charts showing (i) date of service, (ii) amounts paid, and (iii) the date of Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 11 of 13 PageID: 283 8 payments/claims decisions. It is clear that Plaintiff’s time to submit administrative appeals, in accordance with the Plan, has long passed. (Opp’n, Dkt. No. 15, Ex. 3). See Montvale Surgical Ctr., LLC v. Horizon Blue Cross Blue Shield of N.J., Inc., No. 12-3685 (SRC), 2013 U.S. Dist. LEXIS 15327, at *14 (D.N.J. Feb. 5, 2013) (dismissing the plaintiff’s claim for failure to comply with the Plan’s two level appeals procedures before initiating the litigation); Morillo v. 1199 SEIU Benefit and Pension Funds, 783 F. Supp. 2d 487, 493-94 (S.D.N.Y. 2011) (dismissing the plaintiff’s benefits claim for failure to exhaust administrative remedies when he did not comply with the applicable pension plans’ appeals procedures); Kesselman v. The Rawlings Co., LLC, 668 F. Supp. 2d 604, 608-09 (S.D.N.Y. 2009) (dismissing the plaintiff’s claims for failure to exhaust and explaining that “courts look to whether plaintiffs have utilized and exhausted administrative remedies under the plan at issue, rather than pursuant to plaintiff's understanding of what may constitute the best method of addressing her claims”) (emphasis in original). Indeed, most of the payments and claims decisions were made from June 2015 to September 2015. III. Plaintiff’s Demand For A Jury Trial Should Be Stricken. Plaintiff acknowledges that her claim is preempted by ERISA. “The Third Circuit has consistently held that there is no right to a jury trial in suits brought under ERISA Section 502(a)(1)(B).” Killian v. Johnson & Johnson, No. 07-4902 (GEB), 2008 U.S. Dist. LEXIS 6329, at *10 (D.N.J. Jan. 28, 2008) (citations omitted); D’Alessandro v. Hartford Life & Accident Ins. Co., No. 09-1115, 2009 U.S. Dist. LEXIS 37048 (JAP), at *3 n.2 (D.N.J. May 1, 2009). Thus, Plaintiff’s jury demand should be stricken. IV. Plaintiff Should Not Be Granted Leave To Amend. Plaintiff’s claim should be dismissed, without leave to amend, since the flaws in Plaintiff’s claim against Empire are incurable. There is no reason to believe that an amended Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 12 of 13 PageID: 284 9 complaint would be more meritorious in light of the inherent deficiencies of Plaintiff’s current Complaint. CONCLUSION For the foregoing reasons, Empire respectfully requests that the Court dismiss the Complaint in its entirety as against Empire, without leave to amend, pursuant to Rule 12(b)(6) of the FRCP. Dated: January 23, 2017 New York, New York Respectfully submitted, TROUTMAN SANDERS LLP By: /s/ Amanda Lyn Genovese Amanda Lyn Genovese 875 Third Avenue New York, New York 10022 Tel: (212) 704-6000 Fax: (212) 704-6288 amanda.genovese@troutmansanders.com Attorneys for Defendant Empire HealthChoice Assurance, Inc. Case 2:16-cv-06786-JMV-JBC Document 18 Filed 01/23/17 Page 13 of 13 PageID: 285 TROUTMAN SANDERS LLP 875 Third Avenue New York, NY10022 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 Attorneys for Defendant Empire HealthChoice Assurance, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY --------------------------------------------------------------------X CHARLENE A. LEMOINE, CIVIL ACTION NO.: 2:16-cv-06786-JMV-JBC Hon. John Michael Vazquez Plaintiff, -against- CERTIFICATE OF SERVICE EMPIRE BLUE CROSS BLUE SHIELD AND XYZ Document Electronically Filed CORPS. 1-10 (said names being fictitious and unknown), Defendants. --------------------------------------------------------------------X I, Amanda L. Genovese, Esq., hereby certify as follows: 1. I am an attorney at law, admitted in the State of New Jersey, and an associate of the Law firm of Troutman Sanders, LLP, attorneys for Defendant Empire HealthChoice Assurance, Inc. (“Empire”) in the above-captioned matter. 2. On January 23, 2017, the following document were electronically filed with the Clerk of the Court and served on all parties via CM/ECF: a. Defendant Empire HealthChoice Assurance, Inc.’s Reply Memorandum of Law in Further Support of its Motion to Dismiss; and b. this Certificate of Service I certify under penalty of perjury that the foregoing is true and correct. Case 2:16-cv-06786-JMV-JBC Document 18-1 Filed 01/23/17 Page 1 of 2 PageID: 286 2 Dated: January 23, 2017 New York, New York TROUTMAN SANDERS LLP By: /s/ Amanda Lyn Genovese Amanda Lyn Genovese 875 Third Avenue New York, New York 10022 Tel: (212) 704-6000 Fax: (212) 704-6288 amanda.genovese@troutmansanders.com Attorneys for Defendant Empire HealthChoice Assurance, Inc. Case 2:16-cv-06786-JMV-JBC Document 18-1 Filed 01/23/17 Page 2 of 2 PageID: 287