Case 3:11-cv-06504-MLC-DEA Document 21 Filed 06/04/13 Page 1 of 8 PageID: 710
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CIVIL ACTION NO. 11-6504 (MLC)
JOANN BARTLETT, et al.,
HORIZON BLUE CROSS BLUE SHIELD,
COOPER, District Judge
The plaintiffs, Joann Bartlett, Jacqueline D. Bartlett,
Jessica Bartlett, Ashley Bartlett, Kassandra Bartlett, Brian M.
Bartlett, and Brian C. Bartlett (collectively, “the Bartletts”)
originally brought the action against the defendants, Horizon Blue
Cross Blue Shield (“Horizon BCBS”), Horizon, and the fictitious
defendant ABC-XYZ Corp., in the Superior Court of New Jersey. (See
dkt. entry no. 1, Ex. A to Notice of Removal, Compl; dkt. entry no.
1, Ex. B to Notice of Removal, Am. Compl.) The Bartletts, in the
Amended Complaint, raise three counts against the defendants. (See
Am. Compl. at 1-3.) The first count (“First Count”) relates to the
Bartletts’ medical insurance policy (“the Policy”), which was
issued by Horizon BCBS, and the defendants’ alleged failure to
properly provide payments pursuant to the Policy. (See id. at
First Count.) The second count (“Second Count”) and third count
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(“Third Count”) relate to the defendants’ allegedly fraudulent
acts, insofar as the defendants induced the Bartletts to purchase
the Policy and rely on the defendants to make payments thereunder.
(See id. at Second Count, Third Count.)
The one true defendant, Horizon BCBS, removed the action to
this Court. (See dkt. entry no. 1, Notice of Removal.)1 Horizon
BCBS averred in support of the removal that:
This action was brought against Horizon [BCBS] by
Plaintiffs [the Bartletts], to recover benefits under an
employee health benefit plan governed by the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001
et seq. (“ERISA”). . . . Plaintiffs’ claim for
benefits, as a matter of federal law, is governed by the
terms and conditions of ERISA and therefore falls within
the ambit of this Court’s original federal question
(Notice of Removal at ¶¶ 1, 13 (citation omitted).) The Bartletts
contested neither the removal of the action generally nor Horizon
BCBS’s averments concerning the applicability of ERISA. It in fact
appears that the Bartletts agree that the action is governed by
ERISA. (See, e.g., dkt. entry no. 18-1, Barletts’ Statement of
Facts at 2 (“Plaintiff [sic] agrees. . . that . . . [t]he
Plaintiffs all received health benefits through . . . a small group
health benefit plan governed by ERISA . . . .”).)
1 The Court thereafter dismissed Horizon from the action.
(See dkt. entry no. 15, 1-24-13 Order at 3 n.1, 4.)
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Horizon BCBS now moves for summary judgment in its favor and
against the Bartletts on the First Count, Second Count, and Third
Count. (See dkt. entry no. 16-2, Notice of Horizon BCBS Mot.; dkt.
entry no. 16, Horizon BCBS Br.) Horizon BCBS argues that it is
entitled to summary judgment on the First Count as a matter of New
Jersey contract law. (See Horizon BCBS Br. at 9-10.) It argues
that both the Second Count and Third Count are preempted by ERISA.
(See id. at 10-12.) It also seeks a discretionary award of its
attorney’s fees and costs. (See id. at 12-13.)
The Bartletts oppose the Motion and cross-move for summary
judgment in their favor and against Horizon BCBS on the First
Count. (See dkt. entry no. 18, Notice of Cross Mot.; dkt. entry
no. 18-1, Br. in Opp’n to Mot. & Supp. of Cross Mot. (“Opp’n
Br.”).) The Bartletts argue that resolution of both the Motion and
Cross Motion, insofar as each concerns the First Count, turns on
the application of the doctrine of equitable estoppel. (See Opp’n
Br. at 13-18.) The Bartletts, like Horizon BCBS, also seek a
discretionary award of attorney’s fees and costs. (See id. at 19.)
The Court has thoroughly reviewed the parties’ submissions,
and is now prepared to resolve both the Motion and Cross Motion
without oral argument. See L.Civ.R. 78.1(b). The Court intends
to: (1) deny the Motion without prejudice insofar as it concerns
the First Count; (2) grant the Motion insofar as it concerns the
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Second Count and Third Count; (3) deny the Cross Motion without
prejudice insofar as it concerns the First Count; (4) instruct the
Clerk of the Court to terminate the action insofar as it is brought
against ABC-XYZ Corp.; and (5) instruct both Horizon BCBS and the
Bartletts to hold their respective requests for attorney’s fees and
costs in abeyance until the Court resolves all substantive matters
in the action.
THE FIRST COUNT
Both Horizon BCBS and the Bartletts have recited the standard
that generally applies to motions to summary judgment, pursuant to
Federal Rule of Civil Procedure 56. (See Horizon BCBS Br. at 9;
Opp’n Br. at 13; dkt. entry no. 20, Horizon BCBS Reply Br. at 7.)
But neither BCBS nor the Bartletts have recognized that the First
Count, which is a claim for benefits within the meaning of Section
502(a) of ERISA, is also governed by a claim-specific standard.
“In ERISA cases, the standard for summary judgment must also be
viewed in conjunction with the standard of review of administrative
actions under the ERISA guidelines.” Diagnostic Med. Assocs.,
M.D., P.C. v. Guardian Life Ins. Co. of Am., 157 F.Supp.2d 292, 297
(S.D.N.Y. 2001). There are two such ERISA-specific standards.
In [Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101 (1988)], the United States Supreme Court held that
ERISA claims based on a denial of benefits by a
fiduciary under § 1132(a)(1)(B) are to be reviewed under
a default de novo standard. Under de novo review, the
ERISA plan would be interpreted in light of standard
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contract jurisprudence, and according to the rule of
contra preferentum, that is, when one party in a dispute
was responsible for drafting the contract at issue
(presumably the stronger party), all ambiguities in the
contract are resolved against the drafting party.
However, if an ERISA plan insurer or administrator
can establish that “the benefit plan gives the
administration or fiduciary discretionary authority to
determine eligibility for benefits or to construe the
terms of the plan,” then a court reviewing a denial of
benefits to a policyholder must apply the much more
deferential “arbitrary and capricious” standard of
review. Under the arbitrary and capricious standard of
review, the rule of contra preferentum is inapplicable.
Id. (citations omitted); see also Firestone, 489 U.S. at 109, 115.
The application of the correct standard of review may control
the resolution of the First Count. Accordingly, the parties’
failure to either discuss or establish which of these standards
applies here -- the de novo standard or the arbitrary and
capricious standard -- warrants the denial without prejudice of
both the Motion and Cross Motion. See, e.g., Killian v. Concert
Health Plan, 651 F.Supp.2d 770, 777 (N.D. Ill. 2009) (denying
motion for summary judgment where parties failed to present or
highlight “the pertinent materials,” thus precluding the court from
“determin[ing] the appropriate standard of review for [the
plaintiff’s] benefits claim”).
The Court is mindful that the Policy may provide guidance,
insofar as it may explicitly grant Horizon BCBS discretionary
authority to render decisions concerning the benefits here at
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issue. Nevertheless, the Court will neither comb the record on the
parties’ behalf nor present arguments that the parties should craft
for themselves. See DeShields v. Int’l Resort Props. Ltd., 463
Fed.Appx. 117, 120 (3d Cir. 2012) (“If factual support for [a]
claim existed in the record, it was incumbent upon [the parties] to
direct the District Court’s attention to those facts. . . .
[J]udges are not like pigs, hunting for truffles buried in
briefs.”); Perkins v. City of Elizabeth, 412 Fed.Appx. 554, 555 (3d
Cir. 2011) (“[A] court is not obligated to scour the record to find
evidence that will support a party’s claims. . . . Courts cannot
become advocates for a party by doing for that party what the party
ought to have done for him or herself.”)
THE SECOND COUNT & THIRD COUNT
The Bartletts, who are represented by counsel, have chosen not
to raise any argument concerning preemption of the Second Count and
Third Count. (See generally Opp’n Br.) Indeed, they appear to
agree that ERISA governs the Policy and, thus, controls the action.
(See Barletts’ Statement of Facts at 2 (“Plaintiff [sic] agrees. .
. that . . . [t]he Plaintiffs all received health benefits through
. . . a small group health benefit plan governed by ERISA . . .
.”); see also Opp’n Br. at 19 (relying on ERISA as basis for
request for an award of attorney’s fees and costs).) The Court
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thus deems the Bartletts to support the entry of judgment on those
counts in favor of Horizon BCBS.
THE TERMINATION OF THE FICTITIOUS DEFENDANT ABC-XYZ CORP.
The parties were instructed to complete all discovery in the
action by July 16, 2012. (See dkt. entry no. 6, 3-15-12 Pretrial
Scheduling Order). Thus, the time to conduct discovery lapsed
approximately eleven months ago.
“The case law is clear that fictitious defendants must
eventually be dismissed, if discovery yields no identities.”
Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998) (citation omitted)
(internal quotation marks omitted); see also Sheetz v. Morning
Call, Inc., 747 F.Supp. 1515, 1534-35 (E.D. Pa. 1990), aff’d on
other grounds, 946 F.2d 202 (3d Cir. 1991). Because the Bartletts
have failed to name the fictitious defendant that was included in
the caption of the Amended Complaint, i.e., ABC-XYZ Corp., the
Court will dismiss that defendant from the action.
REQUESTS FOR ATTORNEY’S FEES & COSTS
The parties each correctly note that the Court has discretion
to award attorney’s fees and costs to either party in an ERISA
action. (See Horizon BCBS Br. at 12-13 (citing 29 U.S.C. § 1132(g)
and McPherson v. Emps.’ Pension Plan of Am Re-Ins. Co., 33 F.3d 253
(3d Cir. 1994)); Opp’n Br. at 19 (same).) Neither Horizon BCBS nor
the Bartletts recognize, however, that the Court may only award
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attorney’s fees and costs to the prevailing party. See McPherson,
33 F.3d at 254.
No party has yet been established as a prevailing party.
Furthermore, a motion for attorney’s fees and costs is entirely
separate from, and subject to a different standard of review than,
a motion for summary judgment. The Court thus instructs the
parties to hold their respective requests for attorney’s fees and
costs in abeyance, at least until the Court resolves any newly-
filed motions for summary judgment.
The Court, when reviewing the parties’ respective briefs,
noted that the value of the action, exclusive of attorney’s fees
and costs, is less than $5,000. The parties may, of course, move
anew for summary judgment pursuant to the instructions provided
above. But the parties may, alternatively, seek the assistance of
the Magistrate Judge in resolving this dispute without the need for
further briefing, which may save the parties substantial time,
effort, and cost.
The Court will enter a separate order and judgment.
s/ Mary L. Cooper .
MARY L. COOPER
United States District Judge
June 4, 2013