Mack v. Banner Plan Administration Incorporated ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Clifton G Mack, No. CV-20-00297-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Banner Plan Administration Incorporated, 13 Defendant. 14 15 16 Plaintiff owned a business offering massage and chiropractic services. He seeks 17 reimbursement for services other chiropractors in his office allegedly provided to 18 participants in Defendant’s employee welfare benefit plan, which is governed by the 19 Employee Retirement Income Security Act of 1974 (“ERISA”). (Doc. 22.) 20 The amended complaint does not clearly identify the claim at issue. Many clues, 21 however, indicate that Plaintiff has alleged a state law breach of contract claim. First, the 22 amended complaint states, “this claim arises out of a contractual relationship between the 23 parties.” (Id. at 15.) Second, the amended complaint seeks fees and costs under two 24 Arizona fee-shifting statutes applicable to actions arising out of contract. (Id.) Third, the 25 amended complaint does not allege federal jurisdiction based on the existence of a federal 26 question (in fact, it contains no jurisdictional allegations). Finally, Plaintiff’s summary of 27 the nature of his case in the parties’ December 1, 2020 Joint Discovery Plan does identify 28 ERISA as a basis for his claim and, instead, describes his amended complaint as alleging a 1 “claim . . . for breach of third-party benefits under [Defendant’s] contracts with the 2 employees serviced at [Plaintiff’s] clinic.” (Doc. 27 at 2.) Plaintiff also emphasizes that 3 he initially brought his case in Maricopa County Superior Court, which further 4 demonstrates that his claim is grounded in state rather than federal law. (Id.) For these 5 reasons, the Court understands the amended complaint as stating only a state law breach of 6 contract claim. 7 On September 2, 2020, Defendant moved to dismiss Plaintiff’s amended complaint, 8 arguing that his breach of contract claim is preempted by ERISA. (Doc. 23.) Plaintiff was 9 aware of this motion because the parties conferred on the issues before Defendant filed it. 10 (Id. at 1-2.) Nonetheless, Plaintiff failed to respond. On September 25, 2020, Defendant 11 filed a notice alerting the Court that Plaintiff had not responded to the motion to dismiss 12 and, therefore, the Court could summarily grant the motion under Local Rule of Civil 13 Procedure 7.2(i). (Doc. 25.) Plaintiff did not seek permission to respond to the motion to 14 dismiss at any time after this notice was filed. The parties’ Joint Discovery Plan notes that 15 the motion to dismiss remains outstanding. This history demonstrates that Plaintiff is 16 aware of the pending motion and the consequences of not responding and has chosen not 17 to respond. 18 Defendant’s motion to dismiss is granted for two independent reasons. 19 First, Local Rule 7.2(i) allows the Court to treat a non-movant’s failure to file a 20 responsive memorandum as “a consent to the . . . granting of the motion” and therefore to 21 “dispose of the motion summarily.” By choosing not to respond to the motion to dismiss, 22 Plaintiff has conceded that dismissal is warranted. 23 Second, Defendant’s motion is meritorious. ERISA provides the exclusive remedy 24 for an ERISA participant or beneficiary to “recover benefits due him under the terms of his 25 plan, to enforce his rights under the terms of the plan, or to clarify his rights to future 26 benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). “[A]ny state-law cause 27 of action that duplicates, supplements or supplants the ERISA civil enforcement remedy 28 conflicts with the clear congressional intent to make the ERISA remedy exclusive and is 1 || therefore preempted.” Aetna Health Ins. Co. v. Davila, 542 U.S. 200, 209 (2004). “[I]fan individual, at some point in time, could have brought his claim under ERISA . . . and where || there is no other independent legal duty that is implicated by a defendant’s actions, then 4|| the individual’s cause of action is completely pre-empted[.]” Jd. These elements are 5 || satisfied here: Plaintiff seeks to compel Defendant to cause its ERISA-governed plan to 6|| reimburse Plaintiff for services his office allegedly provided to plan participants, and 7\| Defendant’s alleged duty to pay for those services derives solely from that plan (i.e. from 8 || “[Defendant’s] contracts with the employees serviced at [Plaintiff's] clinic” (Doc. 27 at 9|| 2)). Accordingly, Plaintiffs state law breach of contract claim is preempted. 10 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 23) is GRANTED. |} All pending deadlines and hearings are vacated. The Clerk of the Court is directed to || terminate this case. 13 Dated this 2nd day of December, 2020. 14 15 16 {Z, 17 _- Ch 18 Uatted States Dictric Judge 19 20 21 22 23 24 25 26 27 28 -3-