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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NOT FOR PUBLICATION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)

MEMORANDUM OPINION



JOANN BARTLETT, et al.,

Plaintiffs,

v.

HORIZON BLUE CROSS BLUE SHIELD,
et al.,

Defendants.


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

jurisdiction.



(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.

CONCLUSION



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


Date:

June 4, 2013


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