Shah v. Horizon Blue Cross Blue Shield of New Jersey et al

REPLY BRIEF to Opposition to Motion

D.N.J.March 13, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY : RAHUL SHAH, M.D. on assignment of : Civil Case No.: 16-cv-9405 Jason W., : : : Plaintiff, : : v. : : HORIZON BLUE CROSS BLUE : SHIELD OF NEW JERSEY and : ANTHEM BLUE CROSS BLUE SHIELD : OF VIRGINIA, : : Defendants. : : ______________________________________________________________________________ DEFENDANT HORIZON BLUE CROSS BLUE SHIELD’S BRIEF IN FURTHER SUPPORT OF MOTION TO DISMISS AND IN REPLY TO PLAINTIFF’S OPPOSITION ______________________________________________________________________________ BECKER LLC Michael E. Holzapfel, Esq. (031022002) 354 Eisenhower Parkway Livingston, New Jersey 07039 (973) 251-8943 meholzapfel@becker.legal Attorneys for Defendant Horizon Blue Cross Blue Shield of New Jersey Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 1 of 15 PageID: 353 TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I: PLAINTIFF LACKS STANDING BECAUSE THE PARTICIPANT’S PLAN CONTAINS A CLEAR AND CONSPICUOUS ANTI-ASSIGNMENT CLAUSE, AND THE MAJORITY RULE WITHIN THIS AND OTHER DISTRICTS IS THAT SUCH CLAUSES SHOULD BE ENFORCED . . . . . . . . . . . . . . . . . . . . . . .2 POINT II: HORIZON IS NOT THE PROPER PARTY TO THIS LAWSUIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 2 of 15 PageID: 354 TABLE OF AUTHORITIES Cases Advanced Orthopedics and Sports Medicine v. Blue Cross Blue Shield of Massachusetts, 2015 W.L. 4430488 (D.N.J. Jul. 20, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 Advanced Orthopedic and Sports Medicine v. Horizon Blue Cross Blue Shield of New Jersey, Civil Case No. 13-cv-1142 (D.N.J. Aug. 1, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 American Orthopedic & Sports Medicine o/a/o v. Horizon Blue Cross Blue Shield of New Jersey, Civil Case No. 16-cv-8988 (D.N.J. Feb. 24, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5 Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Cohen v. Independence Blue Cross, 820 F.Supp.2d 594 (D.N.J. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Givaudon Fragrances Corporation v. Aetna Casualty & Surety Company, 227 N.J. 322 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8 Kaul v. Horizon Blue Cross Blue Shield of New Jersey, 2016 W.L. 4071953 (D.N.J. Jul. 29, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Millard Gutter Company v. Farm Bureau Property & Casualty, 889 N.W.2d 596 (Neb. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 OB-GYN v. Blue Cross and Blue Shield of Nebraska, 361 N.W.2d 550 (Neb. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Physicians Multispecialty Group v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 3 of 15 PageID: 355 Somerset Orthopedic Associates, P.A. v. Horizon Blue Cross Blue Shield of New Jersey, 345 N.J. Super. 410 (App.Div. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Other BLACK’S LAW DICTIONARY (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 4 of 15 PageID: 356 1 PRELIMINARY STATEMENT Defendant Horizon Blue Cross Blue Shield of New Jersey (“Horizon”) respectfully submits this brief in further support of its motion to dismiss [ECF No. 9], and in reply to Plaintiff’s opposition [ECF No. 11]. All capitalized terms and abbreviations used herein shall have the same meaning ascribed them in Horizon’s moving brief. As the Court is aware, co-defendant Anthem Health Plans of Virginia, Inc. d/b/a Anthem Blue Cross and Blue Shield (“Anthem”) also has a pending motion to dismiss [ECF No. 8], the reply brief for which Anthem filed today [ECF No. 12]. Once again, in the interest of brevity, Horizon joins in the arguments Anthem has made as to why Plaintiff lacks standing, as well as why the various ERISA-based causes of action pleaded in the Complaint lack merit. The purpose of this reply brief is to address two discreet aspects of Plaintiff’s opposition: (1) Plaintiff’s failure to proffer any applicable authority supporting his position that the Court should disregard the majority rule that anti-assignment clauses in ERISA plans are enforceable; and (2) Plaintiff’s failure to plead any factual predicates suggesting that Horizon is a proper defendant in this ERISA enforcement action. Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 5 of 15 PageID: 357 2 LEGAL ARGUMENT POINT I PLAINTIFF LACKS STANDING BECAUSE THE PARTICIPANT’S PLAN CONTAINS A CLEAR AND CONSPICUOUS ANTI-ASSIGNMENT CLAUSE, AND THE MAJORITY RULE WITHIN THIS AND OTHER DISTRICTS IS THAT SUCH CLAUSES SHOULD BE ENFORCED. Preliminarily, while Defendants’ standing argument is based primarily on the Plan’s anti- assignment clause, Horizon notes that even if the Plan did not contain such a clause, Plaintiff does not challenge Horizon’s argument (set forth at pages 7-8 of its moving brief) that Plaintiff himself is not an assignee of anything, and was in fact incapable of accepting an assignment from the Participant. As Horizon has explained, according to the Complaint’s Exhibit B it was not until January 2016 that the Participant allegedly purported to “irrevocably” assign his beneficiary status to Dr. Shah - or, to be accurate, to a medical practice whose letterhead lists Dr. Shah and others as affiliated professionals. That purported assignment, however, occurred more than a year after the surgery, by which time the Participant - again, according to Plaintiff’s own Complaint - had already “irrevocably” assigned that same status to Premier Orthopedic Associates, who is not a party to this case. Thus, by Plaintiff’s own documents, Dr. Rahul Shah simply has no business bringing this lawsuit, as he does not own - that is, he has not been individually “assigned” - any claims. Plaintiff does not dispute this and the Complaint should be dismissed on this basis alone. If, however, the Court is inclined afford Plaintiff the benefit of the doubt and assume that Plaintiff individually could qualify as an assignee, the Plan itself forecloses assignments. In their moving briefs, Horizon and Anthem lay out the legion of applicable case law upholding the enforcement of anti-assignment clauses in ERISA plans. See, e.g., Cohen v. Independence Blue Cross, 820 F.Supp.2d 594 (D.N.J. 2011); Advanced Orthopedics and Sports Medicine v. Blue Cross Blue Shield of Massachusetts (“Advanced Ortho.-Mass.”), 2015 W.L. 4430488 (D.N.J. Jul. Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 6 of 15 PageID: 358 3 20, 2015); Advanced Orthopedic and Sports Medicine v. Horizon Blue Cross Blue Shield of New Jersey (“Advanced Ortho.-Horizon”), Civil Case No. 13-cv-1142 (D.N.J. Aug. 1, 2013); Kaul v. Horizon Blue Cross Blue Shield of New Jersey, 2016 W.L. 4071953 (D.N.J. Jul. 29, 2016). Just recently Judge Linares issued an opinion in American Orthopedic & Sports Medicine o/a/o v. Horizon, et al (“American Ortho.”), Civil Case No. 16-cv-8988, Docket No. 10), in which the Court noted on page 6 that “the weight of authority appears to uphold the validity and enforceability of anti-assignment provisions in the plans as a majority of circuits and district courts in the Third-Circuit have given effect to anti-assignment provisions and denied standing” (numerous citations omitted). Additionally, Judge Linares’s opinion is, notably, another case (others Advanced Ortho.- Mass, Advanced Ortho.-Horizon, and Kaul being others) in which Callagy Law, P.C. represents an out-of-network provider who is suing Horizon and/or other Blue Cross Blue Shield licensees over the out-of-network reimbursement available under the ERISA plan in question. In all of these cases, not only did the courts enforce the anti-assignment clauses in question, they rejected the provider’s make-weight, boilerplate rebuttal that defendants somehow waived the anti- assignment clause through a “pre-suit course of dealing” involving the submission and receipt of payments and letters of appeal - the same argument Plaintiff makes here. See American Ortho. at pp. 8-9; Kaul at * 3; Advanced Ortho-Mass. at *6-9; Advanced Ortho.-Horizon at pp.8-10. There is no reason why that same canned defense should not suffer the same fate in this case. Further, the clause in question is not, as Plaintiff contends, ambiguous. To the contrary, the clause is quite clear: “The coverage and benefits under the Plan are not assignable by any Member without the written consent of the Plan, except as provided above.” In opposition, Plaintiff seizes on some of that language “provided above,” which describes the Plan’s ability to Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 7 of 15 PageID: 359 4 pay covered claims directly to providers. Plaintiff contends that a policy provision barring coverage and benefit assignments to out-of-network providers is irreconcilable with a provision reserving to the plan the ability to pay claims to those providers directly, and hence the Court must deem the anti-assignment clause ambiguous and therefore void. This argument can best be described as contrived. It is not at all uncommon for plans to retain the right to pay a member’s out-of-network claims directly to the provider, yet preclude the member from assigning his coverage and beneficiary status to that same provider, or to any third-party. In fact, two of the cases Plaintiff cites (pages 10-11 of the opposition) recognize this distinction, and in those cases the courts did not hesitate to enforce an anti-assignment clause despite the plan’s provision for direct payments to providers. See, e.g., Somerset Orthopedic Associates, P.A. v. Horizon Blue Cross Blue Shield of New Jersey (“Somerset Ortho.”), 345 N.J. Super. 410, 415 (App.Div. 2001)(endorsing the following language: “No assignment or transfer by You of any of Your interest under this Policy is valid unless We consent thereto. However, We may, in Our discretion, pay a provider directly for services rendered to You.”); Physicians Multispecialty Group v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291, 1295 (11th Cir. 2004) (upholding the following language: “Amounts payable at any time may be used to make direct payments to health care providers. Except as applicable law may otherwise require, no amount payable at any time hereunder shall be subject in any manner to alienation by…assignment…of any kind. Any attempt to…assign…any such amount whether presently or hereafter payable, shall be void.”); see also Advanced Ortho.-Mass. at * 7 (“federal courts in New Jersey and other jurisdictions have held, under various state laws, that sending a direct payment alone does not constitute waiver of an anti-assignment provision, at least where the plan authorizes direct payment”)(citations omitted). Plaintiff cites not a single case Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 8 of 15 PageID: 360 5 in which a court has held that a direct-payment provision somehow voids an otherwise unambiguous anti-assignment clause, and his ambiguity argument likewise fails. As a final point regarding the anti-assignment clause, Horizon is constrained to address Plaintiff’s curious argument that the New Jersey Supreme Court’s recent, February 1, 2017 opinion in Givaudan Fragrances Corporation v. Aetna Casualty & Surety Company, 227 N.J. 322 (1997), somehow voids the subject anti-assignment clause (and, by practical extension, Judge Linares’s more recent, February 24, 2017 opinion in American Ortho.). As a threshold matter, Plaintiff’s position that anti-assignment clauses are somehow unenforceable in the present context of an ERISA enforcement action in light of Givaudan (pages 7-9 of the opposition) is inherently inconsistent with Plaintiff’s recognition that unambiguous anti-assignment clauses are indeed enforceable in that same context (pages 9-11 of the brief). That contradiction aside, Givaudan is entirely inapposite. Some of the more fundamental distinctions between this ERISA enforcement action and Givaudan are as follows: First, Givaudan does not even address the same subject matter. Givaudan does not mention ERISA, or even healthcare law, nor do any of the cases cited in the New Jersey Supreme Court’s opinion. Givaudan, every case cited in Givaudan, and every case cited in Point IV(A) of Plaintiff’s opposition purporting to elaborate on Givaudan, is a state court case pertaining to state law-based liability and casualty insurance claims. Givaudan simply does not apply in this context of an ERISA enforcement action, nor could it given that ERISA preempts state law. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987). Second, even if Givaudan applied, or was even marginally relevant, that case applies to post-loss assignments of claims, not pre-loss assignments of policies. Givaudan, 227 N.J. at 346. In that case, the plaintiff was the successor-in-interest to a specific claim - a chose in action - Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 9 of 15 PageID: 361 6 against the defendant insurer which arose years before out of a defined occurrence. Here, Plaintiff does not contend that the Participant suffered a specific “loss” (a subject discussed more fully infra) and then transferred an extant claim related to that loss to Plaintiff. Quite the opposite, the Complaint alleges that prior to performing the subject surgery (which occurred in October 2014), Plaintiff took an irrevocable assignment of benefits from the Participant (dated April 2013), which purported to transfer the entire “insurance contract” to Plaintiff. Complaint, ¶ 7, Ex. B. Plaintiff does not contend that he acquired an isolated claim from a policyholder - Plaintiff contends, for all legal and practical purposes, that he is the policyholder. Givaudan did not involve such a scenario. Significantly, however, when that scenario does arise (at least in a liability and casualty context), the Supreme Court acknowledged the majority rule that pre-loss assignments of entire policies are indeed barred by anti-assignment clauses. See Givaudan, 227 at 336-340. Third, a key element behind the Supreme Court’s reasoning in Givaudan was the fact that the assignment/transfer in question took place not only after the triggering occurrence (specifically a discharge of pollutants), but after the named insured’s occurrence-based policy had already expired. At that point in time, an assignment is no longer regarded as a transfer of an actual policy. Instead it is a transfer of a chose in action under the policy which in no way materially alters the insurer’s exposure. Id. at 339-340 (internal citations omitted). That is, recognition of the named insured’s assignment to the successor created no additional potential risk to the carrier. With the occurrence fixed and the policy expired, the carrier’s obligation under the policy was still the same, and its contractual obligation under the policy did not increase simply because the identity of the claimant had changed. See id. at 349-350. Here, Plaintiff seeks to do precisely the opposite. The Participant subscribes to a Plan, which provides for an out-of-network benefit, which Anthem paid. If the Participant himself had Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 10 of 15 PageID: 362 7 handled the claims submission process, the benefit would have been the same. Now, by virtue of this lawsuit, Plaintiff, as an alleged derivative beneficiary of that same benefit, is asking the Court to force the Plan to pay many multiples above its prescribed benefits, simply because Plaintiff feels those benefits are inadequate. Complaint, ¶¶ 7-11. In other words, Plaintiff is seeking to dramatically increase an insurer’s risk, a proposition which draws no support from Givaudan. Fourth, this case does not involve an insured “loss” for purposes of a Givaudan analysis. The word “loss” in an insurance policy means a “state of fact of being lost or destroyed, ruin or destruction,” and in a liability context a “loss” is sustained as a result of an “occurrence,” which means “an incident or event that happens without being designed or expected from the standpoint of an insured.” BLACK’S LAW DICTIONARY 945, 1080 (6th ed. 1990). The Participant’s pre- planned back surgery, Complaint Ex. A., was not an “occurrence” in the customary liability insurance context, nor is the Participant’s co-insurance liability attributable to his choice to have that surgery performed by an out-of-network doctor a “loss.” Even if one could construe that liability as a “loss,” moreover, unlike the liability and casualty arena where covered losses are typically sustained out of sudden and unforeseeable events beyond the insured’s control, here the named insured had the ability to avoid his “loss” altogether by going to an in-network physician. Givaudan’s liability and casualty analysis of “loss” simply does not fit this fact pattern. Fifth, even if the Court could consider the Participant’s assignment of benefits a transfer of a particular chose in action, as opposed to a transfer of a policy, while public policy favoring free alienability of a chose in action may be significant, “it is not paramount and must be balanced against a very strong policy…favoring the freedom to contract.” See Millard Gutter Company v. Farm Bureau Property & Casualty, 889 N.W.2d 596, 604 (Neb. 2016) (citing OB-GYN v. Blue Cross and Blue Shield of Nebraska, 361 N.W.2d 550, 555 (Neb. 1985)). The Millard court Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 11 of 15 PageID: 363 8 recognized that public policy may favor enforcement of a non-assignment clause in various situations, such as in an agreement between Blue Cross and a subscriber stating that benefits cannot be assigned to a nonparticipating provider. See id. at 600. Such a prohibition serves a purpose in persuading health care providers to become participating providers and help keep costs down for subscribers. Id. at 604. The Millard court commented that cases from other jurisdictions have carved out an exception to the majority rule favoring free alienability of a chose in action in cases involving health care insurance contracts. Id. One of those jurisdictions is New Jersey, as evidenced by the cases cited above and in Defendants’ moving briefs. Givaudan did not even cite any of these cases, let alone purport to overrule them or call them into question. For the foregoing reasons, the Court should enforce the anti-assignment clause and dismiss the Complaint. Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 12 of 15 PageID: 364 9 POINT II HORIZON IS NOT THE PROPER PARTY TO THIS LAWSUIT Plaintiff’s opposition is meant to apply to both Anthem and Horizon’s motions, but the opposition actually pays minimal attention to the argument Horizon raises in its own unique defense, which is that it is not a proper recipient of Plaintiff’s claims. Whatever Plaintiff’s complaint with regard to the payment he received under the Participant’s plan for the subject procedure may be, Plaintiff does not dispute that the Participant is not a Horizon insured; Plaintiff is not a Horizon provider; and the plan in question is not a Horizon plan. In fact, for all of Plaintiff’s lumping in together of both Horizon and Anthem as “Defendants” who are alleged to have done this or that, Plaintiff appears to recognize in Point IX of his brief that Horizon is a separate and distinct entity. All Plaintiff can say, essentially, is that dismissal of Horizon would be inappropriate because additional discovery is needed. This argument fails for two reasons. First, this is an ERISA enforcement action. Barring few exceptions, there is no further discovery to be had, and adjudication is to be made on the administrative record. See Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997). Second, even if Plaintiff had a basis to circumvent this general preclusion against supplemental discovery, what “additional discovery” does Plaintiff want, exactly? The purpose of pretrial discovery is to allow a party to seek particular facts relevant to an already established allegation of wrongdoing, not to embark on a fishing expedition. See, e.g., Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017 (5th Cir. 1983). The Court must consider this principle in conjunction with federal pleading standards, which require Plaintiff to “do more than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A pleading that offers labels and conclusions will not do. Nor Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 13 of 15 PageID: 365 10 does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In both the Complaint and the opposition, Plaintiff is content to lump “Defendants” in together, notwithstanding his recognition that Horizon is not the plan administrator or insurer, and has no relationship of any kind with either Plaintiff or the Participant. When confronted with a motion by Horizon pointing this out, the best Plaintiff can do is offer up a blanket suggestion that further discovery is necessary, without articulating what discovery he seeks, or how it might impact the issues in this case. It is Plaintiff’s burden, nor Horizon’s, under federal pleading standards to show the “why and wherefore” for his claims against both Defendants. Plaintiff has pleaded no facts at all suggesting that Horizon has anything to do with the administration or control of the plan or the disposition of its assets, or that Horizon is a party who may be compelled in any way to extend additional benefits under the subject plan. Plaintiff offers no explanation as to what additional discovery would yield. Plaintiff simply throws up the “additional discovery” defense without any elaboration in hopes of keeping Horizon in the case as an additional pocket. This is improper and the Court should dismiss the case as to Horizon. Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 14 of 15 PageID: 366 11 CONCLUSION For the foregoing reasons and those set forth in Horizon’s initial brief, the Complaint is defective as a matter of law as to Horizon and should be dismissed for failure to state a claim. BECKER LLC Attorneys for Defendant Horizon Blue Cross Blue Shield of New Jersey By: /s/ Michael E. Holzapfel (MH 0345) Michael E. Holzapfel (MH 0345) Dated: March 13, 2017 Case 1:16-cv-09405-RBK-JS Document 13 Filed 03/13/17 Page 15 of 15 PageID: 367 BECKER LLC Michael E. Holzapfel, Esq. (031022002) 354 Eisenhower Parkway Livingston, New Jersey 07039 (973) 251-8943 meholzapfel@becker.legal Attorneys for Defendant Horizon Blue Cross Blue Shield of New Jersey UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY : RAHUL SHAH, M.D. on assignment of : Civil Case No.: 16-cv-9405 Jason W., : : : Plaintiff, : : v. : : HORIZON BLUE CROSS BLUE : CERTIFICATE OF SERVICE SHIELD OF NEW JERSEY and : ANTHEM BLUE CROSS BLUE SHIELD : OF VIRGINIA, : : Defendants. : : MICHAEL E. HOLZAPFEL, of full age, by way of certification in lieu of affidavit, hereby certifies as follows: 1. I am an attorney-at-law licensed to practice in the State of New Jersey and am associated with the law firm Becker LLC, counsel for Defendant Horizon Blue Cross Blue Shield of New Jersey (“Horizon”). I have full knowledge of the facts set forth herein. 2. On March 13, 2017 I caused to be filed on behalf of Horizon, via CM/ECF, the following pleadings: (1) Brief in Further Support of Horizon’s Motion to Dismiss and in Reply to Plaintiff’s Opposition; and (2) Certification of Service. Case 1:16-cv-09405-RBK-JS Document 13-1 Filed 03/13/17 Page 1 of 2 PageID: 368 2 3. Pursuant to L.Civ.R. 5.1 and Fed. R. Civ. P. 5, service of the foregoing pleadings was deemed made upon the law firm Callagy Law, P.C., counsel for Plaintiff, upon filing via CM/ECF. 4. A courtesy copy of Horizon’s motion shall be served via N.J. Lawyer’s Service to the Chambers of the Honorable Robert B. Kugler, U.S.D.J. at the Mitchell H. Cohen Building & U.S. Courthouse, 4th and Cooper Streets, Camden New Jersey 08101. I hereby certify that the foregoing representations made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. BECKER LLC Attorneys for Defendant Horizon Blue Cross Blue Shield of New Jersey /s/ Michael E. Holzapfel, Esq. Michael E. Holzapfel Dated: March 13, 2017 Case 1:16-cv-09405-RBK-JS Document 13-1 Filed 03/13/17 Page 2 of 2 PageID: 369