Perisic v. Kim

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARIA PERISIC
Plaintiff,
No. 18-cv-2038 (EGS)
v.
JIM YONG KIM, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Maria Perisic (“Ms. Perisic”), proceeding pro se,
filed this action in the Superior Court of the District of
Columbia (“Superior Court”) against four officials of the World
Bank Group (“World Bank Defendants”) and Cigna (together with
the World Bank Defendants, “Defendants”). The World Bank
terminated Ms. Perisic because her position became redundant.
She later challenged her termination through an internal review
process. The World Bank Administrative Tribunal (“Tribunal”)
upheld the redundancy decision, but the Tribunal ordered the
World Bank to pay Ms. Perisic four months’ salary and attorney’s
fees due to a procedural flaw. Dissatisfied, Ms. Perisic asserts
various claims against the World Bank Defendants, alleging
wrongful termination, discrimination, theft of intellectual
property, fraudulent misconduct, and mismanagement of insurance,
pension, workers’ compensation, and disability benefits.
Cigna, with the consent of the World Bank Defendants,
removed the case to this Court pursuant to 28 U.S.C. §§ 1331,
1441, and 1446 based on Ms. Perisic’s claims that the Defendants
mishandled the World Bank Group’s medical insurance plan, denied
her benefits under that plan, and failed to comply with the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001 et seq. Defendants separately move to dismiss the
Complaint, and Ms. Perisic moves to remand this case to the
Superior Court. Upon careful consideration of the parties’
submissions, the applicable law, and the entire record herein,
the Court GRANTS IN PART and DENIES IN PART the World Bank
Defendants’ Motion to Dismiss, GRANTS IN PART and DENIES IN PART
Cigna’s Motion to Dismiss, DENIES Ms. Perisic’s Motion to
Remand, and DISMISSES WITHOUT PREJUDICE this action.
I. Background
A. Factual Background
The following facts—drawn from the Complaint and documents
incorporated by reference therein—are assumed to be true. See
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir.
2015). Between 1994 and 2014, Ms. Perisic worked for the World
Bank and the International Finance Corporation (“IFC”), a member
of the World Bank Group. 1 See Compl., ECF No. 1-1 at 3 ¶ 4; see
1 The World Bank Group consists of five international
organizations: (1) the International Bank for Reconstruction and
2
also World Bank Defs.’ Mot. to Dismiss, ECF No. 7 at 5. 2 After
completing the World Bank’s Young Professional Program,
Ms. Perisic began working for the IFC in 1995. Compl., ECF No.
1-1 at 3 ¶ 4, 6 ¶ 9. Ten years later, she moved to the World
Bank, id. at 3 ¶ 4, where she earned promotions, id. at 7 ¶ 11.
In November 1995, Ms. Perisic went on leave after suffering a
stroke, and she returned to work in March 1996. Id. at 6 ¶ 9.
After her return, she served in different positions and
departments, ending in the South Asia Region’s Agriculture Unit.
See id. at 7 ¶ 11.
Before moving to the Agriculture Unit, Ms. Perisic claims
that one of her managers was “trying to push [her] out of his
unit for reasons which were never explained[.]” Id. at 7 ¶ 10.
But she acknowledges “the fact that [she] was aware that [her]
job capabilities were not as good as they previously were.” Id.
According to Ms. Perisic, her manager and the human resources
officer “tried to push [her] out of [the] [Agriculture] [U]nit”
Development (“IBRD”); (2) the International Development
Association (“IDA”); (3) the IFC; (4) the Multilateral
Investment Guarantee Agency (“MIGA”); and (5) the International
Centre for Settlement of Investment Disputes (“ICSID”). World
Bank Defs.’ Mot. to Dismiss, ECF No. 7 at 3-4 (citing Who We
Are, The World Bank, http://www.worldbank.org/en/who-we-are).
“Together, [the] IBRD and IDA compromise what is commonly
referred to as the ‘World Bank.’” Id. at 4 n.2.
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3
in 2013. Id. at 7 ¶ 12. She alleges that her manager refused to
give her work and blocked her efforts to generate work. Id. at 8
¶ 12 n.8. As a result, Ms. Perisic experienced stress,
dizziness, and weakness in her legs. Id. at 8 ¶ 12. She
eventually applied for short-term disability after missing
twenty-one days of work due to an illness. Id. at 8 ¶¶ 12, 12
n.9. At some point, Ms. Perisic attended a performance
evaluation meeting with her manager, and the manager told her
that her position had become redundant. Id. at 8 ¶ 12.
On August 28, 2013, Ms. Perisic received a Notice of
Redundancy. Id. at 8 ¶ 13. It was dated August 16, 2013 and
signed by Philippe Le Houérou, the World Bank’s Regional Vice
President for South Asia. Id. The Notice states, in relevant
part, that “this confirms your conversation with [the manager
and the human resources officer] in which you were informed that
. . . I have determined that your employment has become
redundant with effect September 1, 2013” and “[s]hould the job
search efforts prove unsuccessful, on March 1, 2014 your
employment with the [World] Bank will be terminated . . . .” Id.
at 8-9 ¶ 13. The Notice also states that “[u]pon termination,
you will be entitled to severance payments . . . and other
benefits for which you are eligible.” Id. at 9 ¶ 13. On February
28, 2014, the World Bank terminated her employment. Id. at 3
¶ 4, 2 ¶ 2 n.2. Thereafter, Ms. Perisic retained an attorney and
4
submitted a request for internal review. Id. at 9 ¶ 14. Her
attorney later filed an application on her behalf to the
Tribunal in 2015. See id. The year-long process ended with the
Tribunal’s decision. Id. at 9 ¶ 14 n.11; see also Ex. A, World
Bank Defs.’ Mot. to Dismiss, ECF No. 7 at 22-59 [hereinafter
“Tribunal’s Decision”].
In 2016, the Tribunal determined that the World Bank
properly classified Ms. Perisic’s position as redundant because
there was a decline in her work program, resulting in
underemployment. Tribunal Decision, ECF No. 7 at 44 ¶ 86, 45
¶ 89. The Tribunal concluded that she failed to present a prima
facie case for age and disability discrimination because the
redundancy decision predated her short-term disability leave.
Id. at 48 ¶¶ 99-100. The Tribunal also concluded that Ms.
Perisic had received advance notice of the need to find
alternative employment, but the World Bank had failed to provide
her with a written explanation of the rationale for the
redundancy decision and a copy of the redundancy notice with the
specific sub-section of the Bank’s applicable staff rules. Id.
at 49-50 ¶¶ 104-07. Finding that the “procedural flaw entitle[d]
[her] to some compensation,” id. at 50 ¶ 107, the Tribunal
ordered the World Bank to pay Ms. Perisic four months’ salary
and her attorney’s fees in the amount of $20,000. Id. at 59; see
also Compl., ECF No. 1-1 at 9 ¶ 14 (alleging that the World Bank
5
misstated that Ms. Perisic received $171,387).
Ms. Perisic characterized that outcome as a “partial
victory” in 2016. Compl., ECF No. 1-1 at 27 ¶ 61. She later
reported to the World Bank that documentation concerning the
redundancy decision contained a fraudulent signature, and the
World Bank conducted an internal review, determining that her
concerns were unfounded because the signature was authentic. Id.
at 27-28 ¶ 63. Satisfied with that review, Ms. Perisic became
unsatisfied in December 2016 with her health insurance, pension
payments, as well as claims for workers’ compensation and
disability benefits. Id. at 28 ¶ 65. She receives pension
payments from the World Bank and participates in its “Retiree
Medical Insurance Plan.” Id. at 2 ¶ 2 n.3. She also received a
severance payment from the World Bank. Id. at 27 ¶ 62.
On January 1, 2017, Cigna and Eye Med replaced Aetna as the
administrators of the World Bank’s dental and vision insurance
plans for employees and retirees. Compl., ECF No. 1-1 at 28-29
¶¶ 67-68; see also Pl.’s Ex. 1, ECF No. 19-1 at 2. According to
Ms. Perisic, “[t]he [World] Bank did not have [her] consent to
enroll [her] in the Cigna dental plan[,]” and she had “no
possibility to get out of the dental plan” so she “stay[ed] in
the medical plan.” Pl.’s Reply & Opp’n (“Pl.’s Opp’n”), ECF No.
15 at 13 n.12. On April 6, 2017, a periodontist—an out-of-
network provider—performed dental work on Ms. Perisic, and Cigna
6
denied her claim for that work. Compl., ECF No. 1-1 at 32-33 ¶¶
74-75. After her appeal, Cigna upheld its decision in September
2017. Id. at 33 ¶ 74. Ms. Perisic continued to have “several
conversations with Cigna customer service representatives,” and
she communicated with representatives in Cigna’s corporate
headquarters and legal department via telephone and mail through
May 2, 2018. Id. at 36 ¶ 81. Shortly thereafter, litigation
ensued.
B. Ms. Perisic’s Allegations
On July 26, 2018, Ms. Perisic filed a lawsuit in the
Superior Court against the four World Bank Defendants—Dr. Jim
Yong Kim, Philippe Le Houérou (“Mr. Houérou”), Snezana
Stoiljkovic (“Ms. Stoiljkovic”), and Frank Heemskerk (“Mr.
Heemskerk”)—and Cigna. See generally Compl., ECF No. 1-1 at 1. 3
Seeking a judgment against Defendants in the sum of $10 million,
id. at 37, Ms. Perisic asserts a laundry list of allegations,
and the precise allegations are not clear from the Complaint.
She alleges that Dr. Kim dismissed her. Id. at 2 ¶ 2. She claims
that his decision was “unethical” and “not in the interest of
efficient administration.” Id. Ms. Perisic challenges “the
3 At all relevant times, Dr. Kim was the World Bank Group’s
President, Mr. Heemskerk was an Executive Director at the World
Bank and the IFC, Mr. Le Houérou was the IFC’s Executive Vice
President and Chief Executive Officer, and Ms. Stoiljkovic was
the IFC’s Vice President for Asia and Pacific. World Bank Defs.’
Mot. to Dismiss, ECF No. 7 at 4.
7
consequent theft of [her] ‘intellectual property’ and
deprivation of the right to a fair ‘trial’, fraudulent
misconduct, and discrimination done by staff of the World Bank
and the [IFC,]” which have “seriously damaged the financial
situation and the well-being of [her] family and [herself].” Id.
at 2-3 ¶ 2. Ms. Perisic also alleges that she applied for
positions where the hiring manager was Ms. Stoiljkovic, id. at
15 ¶ 22 n.16, and that she met with Mr. Heemskerk to discuss her
pending termination, id. at 21 ¶ 40. For these allegations, the
Complaint fails to cite or reference specific statutes or
regulations.
Turning to the allegations concerning her claimed benefits,
Ms. Perisic appears to assert that the World Bank Defendants and
Cigna: (1) failed to adequately manage her enrollment in the
World Bank’s dental retiree medical insurance plan;
(2) mismanaged her health insurance and pension payments; and
(3) “[mis]handle[d] the group health plan’s compliance with
ERISA[.]” Id. at 3 ¶ 3. Specifically, she alleges that
Defendants did not include her stroke in 1995 in their records
that resulted in her vision disability, and that Cigna declined
to cover her blood work in the amount of $575 as part of her
implant surgery in 2017. Id. According to Ms. Perisic, the
dental plan is part of the World Bank Group’s Retiree Medical
Insurance Plan, which is “supposed to be governed by ERISA, [but
8
it] is not.” Id. at 3 ¶ 3 n.4; see also id. at 34 ¶ 77 (alleging
that “I understand that the Bank is required to respect ERISA”).
Indeed, Ms. Perisic alleges that she has a “right to bring legal
action under ERISA,” id. at 34 ¶ 77, based on her own research
and her conversations with representatives from Cigna and the
United States Department of Labor, see id.
C. Procedural History
On August 30, 2018, Cigna timely removed the action from
the Superior Court to this Court on the basis of Ms. Perisic’s
claims for benefits under the World Bank’s group insurance plan
allegedly governed under ERISA. See 28 U.S.C. § 1446(b); see
also Notice of Removal, ECF No. 1 at 2 ¶ 3 (stating that the
notice was filed within thirty days of receipt of the
Complaint). Cigna did not concede that the World Bank’s retiree
dental plan is subject to ERISA. Notice of Removal, ECF No. 1 at
2 n.3. And Cigna noted that Ms. Perisic used the trade name,
which “is not a juridical entity capable of being sued.” Id. at
2 n.1. The World Bank Defendants consented to the removal. Ex.
5, World Bank Defs.’ Consent to Removal, ECF No. 1-5 at 1. The
World Bank did not waive its immunities from process and suit
derived from the International Organizations Immunity Act
(“IOIA”), 22 U.S.C. § 288 et seq. Id.
Defendants move separately to dismiss Ms. Perisic’s
Complaint in its entirety. The World Bank Defendants move to
9
dismiss the wrongful termination and employment-related claims
for lack of subject-matter jurisdiction under Rule 12(b)(1),
arguing that the World Bank Defendants are immune from suit.
World Bank Defs.’ Mot. to Dismiss, ECF No. 7 at 1, 10-14. In the
alternative, the World Bank Defendants move to dismiss the
employment discrimination and dental and vision benefits claims
in the Complaint for failure to state a claim under Rule
12(b)(6). Id. at 1, 14-17. The World Bank Defendants contend
that the group benefits plan is a “governmental plan” exempt
from ERISA. Id. at 17. Cigna moves to dismiss on two primary
grounds: (1) dismissal is warranted under Rule 12(b)(5) for
insufficient service of process; and (2) Ms. Perisic fails to
state a plausible claim for relief as to Cigna’s administration
of her dental benefits pursuant to Rule 12(b)(6). Def.’s Mem. of
P. & A. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”), ECF
No. 8-1 at 1-3. 4
4 Cigna moves to dismiss on the ground that “Cigna” is a trade
name not capable of being sued. Def.’s Mem., ECF No. 8-1 at 1
(citing Ventura v. BEBO Foods, Inc., 595 F. Supp. 2d 77, 80-81
(D.D.C. 2009)). Cigna is “correct in noting the axiom that trade
names are not juridical entities capable of being sued.”
Ventura, 595 F. Supp. 2d at 80. Nonetheless, the use of “Cigna”
rather than Cigna Health and Life Insurance Company does not
warrant dismissal. The company’s letters to Ms. Perisic are
replete with references to “Cigna.” See Pl.’s Ex. 3, ECF No. 9-1
at 39-46; see also Pl.’s Ex. 1, ECF No. 19-1 at 2-3. The Court
assumes that Ms. Perisic has asserted claims against Cigna
Health and Life Insurance Company because: (1) “filings by pro
se litigants should be read together”; and (2) pro se complaints
should be “construed liberally[.]” Heard v. U.S. Dep’t of State,
10
Ms. Perisic seeks to remand this case to the Superior Court
because “[her] case is about theft, discrimination, and
mismanagement of [her] health insurance . . . by [D]efendants”
and her case “is not about ERISA.” Pl.’s Mot. to Remand, ECF No.
9 at 1 (styled as “Motion”). 5 Ms. Perisic argues that the lawyers
representing Defendants have engaged in an “orchestrated effort
to intimidate [her].” Id. at 6. She urges this Court to order
“the attorneys to stop their malicious and distressful
behavior[,]” and “[D]efendants to stop their misconduct and
wrongdoing.” Id. at 7. She seeks $6.5 million in “intangible
No. CIV.A. 08-02123 RBW, 2010 WL 3700184, at *5 n.6 (D.D.C.
Sept. 17, 2010). The Court therefore finds, in the interest of
judicial economy, that Cigna Health and Life Insurance Company
is a defendant in this case. Cf. McManus v. District of
Columbia, 530 F. Supp. 2d 46, 68 (D.D.C. 2007) (finding that the
interest of judicial economy was served by reaching the merits
of the plaintiffs’ claim “rather than delaying the inevitable by
allowing [p]laintiffs to file another lawsuit against [the]
Defendants containing the same meritless claims”). Accordingly,
the Court DENIES Cigna’s motion dismiss as to the trade name
issue.
5 Given Ms. Perisic’s pro se status, the Court “refer[s] to [her
Motion] in this [O]pinion as a ‘Motion to Remand’ . . . and will
rule on it.” Gray v. D.C. Pub. Sch., 688 F. Supp. 2d 1, 2 n.1
(D.D.C. 2010) (citing Leitner v. United States, 679 F. Supp. 2d
37, 40 (D.D.C. 2010)). Ms. Perisic’s motion to remand was not
accompanied by a proposed order as required by Local Civil Rule
7(c). See LCvR 7(c) (“Each motion and opposition shall be
accompanied by a proposed order.”). Cigna notes that Ms. Perisic
failed to confer with defense counsel regarding her motion to
remand as required by Local Civil Rule 7(m). Def.’s Opp’n, ECF
No. 11 at 3 (citing LCvR 7(m)). Ms. Perisic has conceded this
point by not responding to it. See Campbell v. Nat’l R.R.
Passenger Corp., 311 F. Supp. 3d 281, 327 n.13 (D.D.C. 2018);
see generally Pl.’s Opp’n, ECF No. 15.
11
damages” and $6.5 million in punitive damages. Id. Defendants
oppose her motion. See Def.’s Opp’n, ECF No. 11 at 1-3; see also
World Bank Def.’s Opp’n, ECF No. 13 at 1-5.
On September 5, 2019, the Court ordered supplemental
briefing on the issue of whether the Court has subject-matter
jurisdiction if the World Bank’s plan is a “governmental plan”
exempt from ERISA. See Min. Order of Sept. 5, 2019. The Court,
sua sponte, stayed this action pending the resolution of the
jurisdictional issue. Id. The supplemental briefing is now
complete, and the motions are ripe for the Court’s adjudication.
II. Legal Standard
A. Motion to Remand
A civil action may be removed from state court to a federal
district court only if the federal district court has original
subject-matter jurisdiction over the case. 28 U.S.C. § 1441(a).
The Superior Court is considered a state court for removal
purposes. Id. § 1451(a). “When it appears that a district court
lacks subject matter jurisdiction over a case that has been
removed from a state court, the district court must remand the
case . . ., and the court’s order remanding the case to the
state court whence it came ‘is not reviewable on appeal or
otherwise.’” Republic of Venezuela v. Philip Morris Inc., 287
F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c);
quoting id. § 1447(d)). “Because of the significant federalism
12
concerns involved, this Court strictly construes the scope of
its removal jurisdiction.” Downey v. Ambassador Dev., LLC, 568
F. Supp. 2d 28, 30 (D.D.C. 2008). “The party seeking removal of
an action bears the burden of proving that jurisdiction exists
in federal court.” Id.
“Common bases for subject matter jurisdiction in a federal
district court are federal question jurisdiction . . . and
diversity jurisdiction . . . .” Bush v. Butler, 521 F. Supp. 2d
63, 70 (D.D.C. 2007). For federal question jurisdiction, a
defendant may seek removal on the grounds that the case
“aris[es] under the Constitution, laws, or treaties of the
United States.” Apton v. Volkswagen Grp. of Am., Inc., 233 F.
Supp. 3d 4, 11 (D.D.C. 2017) (quoting 28 U.S.C. § 1331). “The
presence or absence of federal-question jurisdiction is governed
by the ‘well-pleaded complaint rule,’ which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). “[I]t is now settled law
that a case may not be removed to federal court on the basis of
a federal defense, including the defense of pre-emption, even if
the defense is anticipated in the plaintiff’s complaint, and
even if both parties concede that the federal defense is the
only question truly at issue.” Id. at 393.
“A challenge to subject matter jurisdiction may be raised
13
on a motion to remand by the parties.” Nat’l Consumers League v.
Bimbo Bakeries USA, 46 F. Supp. 3d 64, 69 (D.D.C. 2014) (citing
28 U.S.C. § 1447(c)). The Court must remand the case to the
state court on the basis of a defect in the removal procedures.
28 U.S.C. § 1447(c). Remand is mandatory “[i]f at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction[.]” Id.
B. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) “presents a
threshold challenge to the Court’s jurisdiction,” and thus “the
Court is obligated to determine whether it has subject-matter
jurisdiction in the first instance.” Curran v. Holder, 626 F.
Supp. 2d 30, 32 (D.D.C. 2009) (citation and internal quotation
marks omitted). “It is to be presumed that a cause lies outside
[a federal court’s] limited jurisdiction,” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), unless the
plaintiff can establish by a preponderance of the evidence that
the court possesses jurisdiction, see, e.g., United States ex
rel. Digital Healthcare, Inc. v. Affiliated Comput., 778 F.
Supp. 2d 37, 43 (D.D.C. 2011) (citation omitted). Thus, the
“plaintiff’s factual allegations in the complaint . . . will
bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a claim.” Id.
(citation and internal quotation marks omitted)). A court “may
14
consider materials outside the pleadings in deciding whether to
grant a motion to dismiss for lack of jurisdiction[.]” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005).
C. Motion to Dismiss under Rule 12(b)(6)
“A Rule 12(b)(6) motion tests the legal sufficiency of a
complaint[.]” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Fed.
R. Civ. P. 8(a)(2), “in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
and internal quotation marks omitted). “[T]he complaint is
construed liberally in the plaintiff[’s] favor, and [the court]
grant[s] [the] plaintiff[ ] the benefit of all inferences that
can be derived from the facts alleged.” Kowal v. MCI Comm’cns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the court
is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286
(1986).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
15
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
[a] reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging facts which are
“‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The pleadings of pro se parties, like Ms. Perisic’s
pleadings in the instant action, are “to be liberally construed,
. . . and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations and internal quotation marks omitted). Nevertheless,
“[a]lthough a court will read a pro se plaintiff’s complaint
liberally, a pro se complaint must present a claim on which the
court can grant relief.” Chandler v. Roche, 215 F. Supp. 2d 166,
168 (D.D.C. 2002).
III. Analysis
The Court first considers whether removal of this lawsuit
from the Superior Court was proper based on federal question
jurisdiction, finding that the Court has federal question
jurisdiction because the Complaint contains claims arising under
ERISA. The Court next addresses whether the Court lacks subject-
matter jurisdiction over Ms. Perisic’s claims as to the World
16
Bank Defendants, finding that the World Bank Defendants are
immune from suit. Finally, the Court concludes that the claims
must be dismissed as to Cigna because Ms. Perisic’s Complaint
fails to state a claim upon which relief can be granted.
A. Removal Was Proper
In its notice of removal, Cigna argues that removal was
proper because the Court has federal question jurisdiction based
on Ms. Perisic’s claims for benefits under ERISA. Notice of
Removal, ECF No. 1 at 3 ¶ 6. And that “ERISA specifically
provides [federal district courts] with jurisdiction over ERISA
claims.” Id. at 3 ¶ 7. In her motion, Ms. Perisic contends that
this case “is not about ERISA.” Pl.’s Mot. to Remand, ECF No. 9
at 1. The World Bank Defendants disagree, arguing that this case
was properly removed from the Superior Court because “it is
apparent from the face of the complaint that [Ms. Perisic] is
attempting to bring a claim under that federal law.” World Bank
Defs.’ Opp’n, ECF No. 13 at 3-4. Cigna maintains that Ms.
Perisic’s “new contention that this case ‘is not about ERISA’”
does not change the fact that the Complaint “purports to allege
claims against Cigna for failing to administer the World Bank’s
dental benefits plan in accordance with [ERISA].” Def.’s Opp’n,
ECF No. 11 at 2. In her supplemental brief, however, Ms. Perisic
asserts that one of her claims is that Defendants have “fail[ed]
to respect ERISA.” Pl.’s Suppl. Mem. in Opp’n to Defs.’ Suppl.
17
Mem. (“Pl.’s Suppl. Mem.”), ECF No. 19 at 3.
“ERISA provides for the comprehensive federal regulation of
employee benefit plans, including health care benefit plans
that, ‘through the purchase of insurance [by an employee] or
otherwise,’ provide ‘medical, surgical, or hospital care, or
benefits in the event of sickness, accident, disability, [or]
death.’” Edelen v. Osterman, 943 F. Supp. 75, 75-76 (D.D.C.
1996) (quoting 29 U.S.C. § 1002(1)). “ERISA protects retirement
benefits for millions of pension plan participants and their
beneficiaries.” VanderKam v. VanderKam, 776 F.3d 883, 885 (D.C.
Cir. 2015) (citing 29 U.S.C. § 1001(b)). And “ERISA provides
participants or beneficiaries with a civil remedy to recover
benefits due under their plans, to enforce rights under their
plans, or to clarify rights to future benefits under their
plans.” Arditi v. Lighthouse Int’l, 676 F.3d 294, 299 (2d Cir.
2012) (citing 29 U.S.C. § 1132(a)).
It is undisputed that Ms. Perisic’s Complaint explicitly
asserts that the World Bank’s group health insurance plan must
comply with ERISA, and that Cigna, as the administrator of the
group dental plan, and the World Bank Defendants have mishandled
that plan. Compl., ECF No. 1-1 at 3 ¶ 3. Indeed, the core of Ms.
Perisic’s allegations is that Defendants have mismanaged her
health insurance benefits and pension payments. See Pl.’s Mot.
to Remand, ECF No. 9 at 1. Defendants maintain that this action
18
was properly removed from the Superior Court to this Court
because this Court has federal question jurisdiction pursuant to
28 U.S.C. § 1331 and ERISA jurisdiction pursuant to 29 U.S.C. §
1132(e). Defs.’ Suppl. Mem., ECF No. 18 at 1.
Cigna invokes the well-pleaded complaint rule. Def.’s
Opp’n, ECF No. 11 at 1. “It is long settled law that a cause of
action arises under federal law only when the plaintiff’s well-
pleaded complaint raises issues of federal law.” Metro. Life
Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). “The ‘well-pleaded
complaint rule’ is the basic principle marking the boundaries of
the federal question jurisdiction of the federal district
courts.” Id. (citation omitted). 6 And the “plaintiff generally is
master of [her] complaint.” Int’l Bhd. of Teamsters v. Ass’n of
6 A “corollary of the well-pleaded complaint rule is that
‘Congress may so completely pre-empt a particular area, that any
civil complaint raising this select group of claims is
necessarily federal in character.’” Int’l Bhd. of Teamsters, 663
F. Supp. at 851 (quoting Metro. Life Ins. Co., 481 U.S. 63-64).
“When the federal statute completely pre-empts the state-law
cause of action, a claim which comes within the scope of that
cause of action, even if pleaded in terms of state law, is in
reality based on federal law.” Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 8 (2003). The Supreme Court has found that
certain statutes, including ERISA, have the requisite
extraordinary preemptive force to support complete preemption.
US Airways Master Exec., Council, Air Line Pilots Assoc., Int’l.
v. Am. W. Master Exec., Council, Air Line Pilots Assoc., Int’l.,
525 F. Supp. 2d 127, 133–34 (D.D.C. 2007) (Sullivan, J.)
(collecting cases). Here, Defendants did not remove Ms.
Perisic’s Complaint on the basis of complete ERISA preemption
because Ms. Perisic purports to assert claims arising under
ERISA. See Defs.’ Suppl., ECF No. 18 at 6.
19
Flight Attendants, 663 F. Supp. 847, 850 (D.D.C. 1987).
Here, it is apparent on the face of the Complaint that Ms.
Perisic asserts claims for certain benefits under the World
Bank’s benefits plan. See generally Compl., ECF No. 1-1. The
World Bank Defendants argue—and the Court agrees—that Ms.
Perisic’s Complaint “alleges a claim arising under ERISA where
[Ms. Perisic] apparently intends to argue that she was
wrongfully denied benefits and that the administration of her
benefits should be governed by the requirements of ERISA.” World
Bank Defs.’ Opp’n, ECF No. 13 at 4. Ms. Perisic’s single
statement—that this case is not about ERISA-directly conflicts
with her claims for benefits under the World Bank’s group health
insurance plan. Compare Pl.’s Mot. to Remand, ECF No. 9 at 1,
with Pl.’s Reply & Opp’n (“Pl.’s Opp’n”), ECF No. 15 at 13-14.
In her opposition brief, Ms. Perisic continues to pursue dental
insurance benefits. See Pl.’s Opp’n, ECF No. 15 at 13-14. She
also “bring[s] to the Court’s attention some matters related to
management of the World Bank’s pension fund i.e. Staff
Retirement Plan and Trust (SRP), that, in [her] opinion, are
indirectly affecting [her] case . . . .” Id. at 5. Ms. Perisic
appears to allege that there is an inadequate remedy for
administratively challenging her pension payments under the
World Bank’s plan because she must submit a claim to the
“Administration Committee” and then appeal the committee’s
20
decision to the Tribunal. Id. at 6.
Ms. Perisic attempts to amend the Complaint by arguing that
this case is not an ERISA case. See Pl.’s Mot. for Remand, ECF
No. 9 at 1. It is true that “[t]he Court must consider a pro se
litigant’s complaint in light of all filings, including filings
responsive to a motion to dismiss,” and “the pro se litigant
may, in effect, supplement his [or her] complaint with the
allegations included in his [or her] opposition.” Magowan v.
Lowery, 166 F. Supp. 3d 39, 58 (D.D.C. 2016) (citation and
internal quotation marks omitted). But under this liberal
construction of Ms. Perisic’s filings, Ms. Perisic’s allegations
sound in ERISA. Cf. Porter v. Anthem Health Plans of Kentucky,
Inc., No. CIV.A. 10-8-HRW, 2010 WL 8685135, at *2 (E.D. Ky. Mar.
18, 2010) (explaining that a “[c]omplaint need not include the
term ‘ERISA’ at all” for a claim to be “preempted by ERISA”).
Ms. Perisic asserts claims arising under ERISA because she
seeks benefits under the World Bank’s group insurance plan. See
Pl.’s Opp’n, ECF No. 15 at 13-14. She disagrees with the World
Bank Defendants’ argument that she has failed to allege damages
for Cigna’s refusal to pay her costs for a dental implant
procedure and certain blood work in April 2017. See id. Ms.
Perisic contends that she has documentation of those costs to
demonstrate that the out-of-network provider did not waive those
costs. See id. Furthermore, Ms. Perisic argues that she has
21
legal rights based on Defendants’ alleged mismanagement of her
health insurance, see Pl.’s Mot. to Remand, ECF No. 9 at 2, and
that the Complaint identifies the Defendants’ “wrongdoings
regarding [her] dental plan,” id. at 3. In her supplemental
brief, Ms. Perisic reiterates that Defendants (1) “mishandled
and are mishandling the World Bank Group’s medical insurance
plan and are profiting on [her] money;” (2) “denied and are
denying benefits under that plan to [her] and [her] dependents;”
and (3) “fail to respect ERISA[.]” Pl.’s Suppl. Mem., ECF No. 19
at 3. Because ERISA was implicated at the time of removal and
Ms. Perisic’s claims arise under ERISA, Defendants have met
their burden of proving federal question jurisdiction by virtue
of ERISA. See 28 U.S.C. § 1331.
Defendants argue—and the Court agrees—that “the lack of an
employee benefit plan subject to ERISA is not a bar to federal
question jurisdiction.” Defs.’ Suppl. Mem., ECF No. 18 at 3
(collecting cases). Ms. Perisic concedes that argument by not
responding to it. See Pl.’s Suppl. Mem., ECF No. 19 at 1. The
World Bank Defendants contend that Ms. Perisic cannot state a
plausible ERISA claim related to the administration of her
dental and vision benefits under the group plan because the
World Bank’s plan—a “governmental plan” under 29 U.S.C. § 1003—
is not governed by ERISA. See World Bank Defs.’ Reply, ECF No.
17 at 4. Ms. Perisic disagrees, but she does not respond with
22
the legal basis for her disagreement. See Pl.’s Suppl. Mem., ECF
No. 19 at 10. Notwithstanding the issue of whether the plan in
Ms. Perisic’s Complaint is a “governmental plan” exempt from
ERISA, the Court has subject-matter jurisdiction over this
action because “[t]he relevant ERISA provision makes no
reference to the jurisdiction of the federal courts.” Saunders
v. Davis, No. 15-CV-2026 (RC), 2016 WL 4921418, at *9 (D.D.C.
Sept. 15, 2016) (finding that “the applicability of the
government plan exemption relate[d] to the merits of [the pro se
plaintiff’s] case”). The question of whether the plan is
governed by ERISA relates to the merits of Ms. Perisic’s case,
and that question has no bearing on the Court’s subject-matter
jurisdiction. See id. The Court therefore finds that removal was
proper in this case. Accordingly, the Court DENIES Ms. Perisic’s
motion to remand.
B. The World Bank Defendants Are Immune from Suit
Having found that the case was properly removed, the Court
must resolve the Defendants’ motions to dismiss. As to the World
Bank Defendants’ motion, the Court considers whether the World
Bank Defendants are immune from Ms. Perisic’s claims. Although
Ms. Perisic does not identify with any specificity or
particularity the legal bases for her allegations, the World
Bank Defendants respond to them under the lenient construction
accorded pro se pleadings. According to the World Bank
23
Defendants, Ms. Perisic appears to assert employment
discrimination claims related to her termination under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
623(a)(1), the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12112, the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2615(a), and the District of Columbia Human Rights Act
(“DCHRA”), D.C. Code § 2-1402.11. World Bank Defs.’ Mot. to
Dismiss, ECF No. 7 at 15. Ms. Perisic, however, clarifies that
this lawsuit is not about her termination, and that any
employment discrimination claim is untimely. See Pl.’s Mot. to
Remand, ECF No. 9 at 1, 3; see also World Bank Defs.’ Reply, ECF
No. 17 at 4 (arguing that Ms. Perisic has conceded the argument
that she fails to state a plausible claim of employment
discrimination related to her termination).
With respect to her claims for dental and vision benefits,
Ms. Perisic mentions ERISA, but she notes that the World Bank is
not “respecting [ERISA] and is ‘hiding’ behind it’s [sic]
immunity[.]” Compl., ECF No. 1-1 at 3 ¶ 3 n.4. Finally, Ms.
Perisic appears to assert claims for workers’ compensation and
disability benefits related to her stroke in 1995, but she does
not cite a single federal or state law in support of those
claims. Pl.’s Opp’n, ECF No. 15 at 6-13; see also World Bank
Defs.’ Reply, ECF No. 17 at 5.
The World Bank Defendants’ primary argument is that they
24
are immune from suit pursuant to the IOIA. See World Bank Defs.’
Mot. to Dismiss, ECF No. 7 at 3, 9. The IOIA grants certain
privileges and immunities to a “public international
organization in which the United States participates . . . and
which shall have been designated by the President through
appropriate Executive order[.]” 22 U.S.C. § 288. Section 288d(b)
of the IOIA provides that:
Representatives of foreign governments in or
to international organizations and officers
and employees of such organizations shall be
immune from suit and legal process relating to
acts performed by them in their official
capacity and falling within their functions as
such representatives, officers, or employees
except insofar as such immunity may be waived
by the foreign government or international
organization concerned.
Id. § 288d(b) (emphasis added); see also Int’l Bank for
Reconstruction & Dev. v. District of Columbia, 171 F.3d 687, 687
(D.C. Cir. 1999) (“The property, income, operations and
transactions of the [IBRD], commonly known as the World Bank,
are immune from federal, state and local taxation.”). The
President of the United States has issued Executive Orders
designating all members of the World Bank Group as public
international organizations entitled to the privileges,
exemptions, and immunities under the IOIA. See, e.g., Exec.
Order No. 9,751, 11 Fed. Reg. 7,713 (July 13, 1946); Exec. Order
No. 11,966, 42 Fed. Reg. 4,331 (Jan. 19, 1977); Exec. Order No.
25
10,680, 21 Fed. Reg. 7,647 (Oct. 5, 1956); Exec. Order No.
12,647, 53 Fed. Reg. 29,323 (Aug. 4, 1988). The scope of the
immunity for the World Bank’s representatives, officers, and
employees has not been limited or amended by the Executive
Orders. See Exec. Order No. 9,751, 11 Fed. Reg. 7,713 (July 13,
1946).
“There are only two sources of limitation to the immunity:
(1) the organization itself may waive its immunity and (2) the
President may specifically limit the organization’s immunities
when he [or she] selects the organization as one entitled to
enjoy the IOIA’s privileges and immunities.” Dujardin v. Int’l
Bank for Reconstruction & Dev., 9 F. App’x 19, 20 (D.C. Cir.
2001). None of those limitations apply here. “The World Bank
thus enjoys immunity from suits such as Plaintiff’s unless it
has expressly waived that immunity.” Hudes v. Aetna Life Ins.
Co., 806 F. Supp. 2d 180, 187 (D.D.C. 2011), aff’d, 493 F. App’x
107 (D.C. Cir. 2012). Courts have repeatedly found that the
World Bank has not waived its immunity in connection with
internal employment-related lawsuits like the present action.
See, e.g., Mendaro v. World Bank, 717 F.2d 610, 617 (D.C. Cir.
1983) (finding “no evidence that the members of the [World] Bank
intended to waive the Bank’s immunity to employee [Title VII]
suits”); Dujardin, 9 F. App’x. at 20 (employee’s defamation
claim); Hudes, 806 F. Supp. 2d at 188 (wrongful-termination
26
claim).
The World Bank Defendants rely on this Court’s decision in
Smith v. World Bank Group, 99 F. Supp. 3d 166, 170 (D.D.C.
2015), aff’d, 694 F. App’x 1 (D.C. Cir. 2017). In Smith, this
Court held that it lacked subject-matter jurisdiction over the
plaintiff’s employment discrimination lawsuit because the World
Bank Group and the World Bank’s President were immune from suit
under the IOIA, and the international organization had not
waived its immunity for internal employment-related lawsuits.
Id. at 170-71. The same is true here.
The World Bank Defendants are immune from this action. Ms.
Perisic has offered no basis for a finding that the World Bank
has waived the immunity of the World Bank Defendants in any way
that would render it less than the immunity reserved to the
Bank. Ms. Perisic’s assertion—that Dr. Kim, as President of the
World Bank Group, cannot be considered an officer or an
employee—is unavailing. See Compl., ECF No. 1-1 at 2 n.1.
Because any involvement by Dr. Kim in the employment actions
giving rise to Ms. Perisic’s claims would relate to “acts
performed by [him] in [his] official capacity and falling within
[his] functions,” 22 U.S.C. § 288d(b), Dr. Kim is immune from
suit. 7 See Smith, 99 F. Supp. 3d at 170-71.
7 After litigation had already begun, Ms. Perisic submitted a
claim in September 2018 related to the stroke that she suffered
27
Ms. Perisic’s reliance on three decisions in this
jurisdiction—for the proposition that the World Bank Defendants
are not immune from suit—is misplaced. See Pl.’s Opp’n, ECF No.
15 at 2-3 (citing Osseiran v. Int’l Fin. Corp., 552 F.3d 836
(D.C. Cir. 2009); Vila v. Inter-Am. Inv. Corp., 570 F.3d 274
(D.C. Cir. 2009); Mendaro, 717 F.2d at 618). In Mendaro, the
United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) concluded that:
It is thus clear that the Bank’s [A]rticles
[of Agreement] waive the Bank’s immunity from
actions arising out of the Bank’s external
relations with its debtors and creditors.
However, a waiver of immunity to suits arising
out of the Bank’s internal operations, such as
its relationship with its own employees, would
contravene the express language of Article VII
section 1.
717 F.2d at 618. Here, Ms. Perisic’s claims relate to the Bank’s
internal operations because the Complaint asserts claims related
to the termination of her employment and the administration of
her claimed benefits. See World Bank Defs.’ Mot. to Dismiss, ECF
No. 7 at 15-17.
in 1995. Pl.’s Opp’n, ECF No. 15 at 7-8. Ms. Perisic appears to
allege that the World Bank has improperly denied her claims for
workers’ compensation and disability benefits. Pl.’s Opp’n, ECF
No. 15 at 6-13. The Court finds that the World Bank Defendants
are immune from such claims because this Court and others have
found that the World Bank has not waived its immunity for claims
regarding withheld employee benefits. See Smith, 99 F. Supp. 3d
at 170 (citing Chiriboga v. Int’l Bank for Reconstruction &
Dev., 616 F. Supp. 963, 967 (D.D.C. 1985)).
28
Both Osseiran and Vila are distinguishable. The D.C.
Circuit in Osseiran interpreted the IFC’s charter and found that
the IFC waived its immunity as to a prospective investor’s
promissory estoppel and confidentiality claims concerning its
alleged representations during sales agreement negotiations. 552
F.3d at 840-41. In Vila, the D.C. Circuit concluded that an
international organization was not immune from an independent
consultant’s unjust enrichment claim where the organization
refused to pay him for services rendered. 570 F.3d at 276–81.
Osseiran and Vila lend no support to Ms. Perisic’s position
because her claims do not pertain to the World Bank’s external
affairs, but rather they concern the internal affairs, as in
Mendaro, 717 F.2d at 618, and Smith, 99 F. Supp. 3d at 170.
Indeed, the World Bank has waived its immunity narrowly, only
for “actions relating to its external activities and contracts,
and not the internal administration of its civil servants.”
Mendaro, 717 F.2d at 621 (emphasis added); see also Morgan v.
Int’l Bank for Reconstruction & Dev., 752 F. Supp. 492, 494
(D.D.C. 1990) (dismissing a lawsuit “concern[ing] an employment
relationship” where the plaintiff’s “suit, if allowed to
proceed, would force the [World] Bank to defend internal
employment practices traditionally shielded by immunity”).
Because the Court finds that the World Bank Defendants are
immune from Ms. Perisic’s claims, the Court lacks subject-matter
29
jurisdiction over those claims as to the World Bank Defendants.
See Smith, 99 F. Supp. 3d at 171 (concluding that the
defendants’ immunity rendered the Court without jurisdiction).
Accordingly, the Court GRANTS IN PART the World Bank Defendant’s
Motion to Dismiss. 8
C. Ms. Perisic Fails to State a Claim Against Cigna
Having found that the Court lacks subject-matter
jurisdiction over the World Bank Defendants does not mean that
“the basis of federal question jurisdiction ha[s] vanished”
because Ms. Perisic seeks insurance benefits and pension
payments under the World Bank’s group benefits plan. Araya v.
JPMorgan Chase Bank, N.A., 775 F.3d 409, 416 (D.C. Cir. 2014).
The Court will proceed to the merits of Ms. Perisic’s claims
against Cigna.
Cigna argues that Ms. Perisic’s Complaint should be
dismissed for insufficient service of process pursuant to Rule
12(b)(5) and for failure to state a plausible claim under Rule
12(b)(6). The Court addresses, in turn, each argument.
Cigna’s first argument is that service was improper and
insufficient because Ms. Perisic served Cigna with the summons
8 Having granted the World Bank Defendants’ motion to dismiss for
lack of subject-matter jurisdiction, the Court DENIES the World
Bank Defendants’ request to dismiss with prejudice Ms. Perisic’s
Complaint. See Smith, 99 F. Supp. 3d at 171 (dismissing without
prejudice plaintiff’s claims against Dr. Kim and the World Bank
where they were immune from suit).
30
and complaint by certified mail on July 31, 2018, and David
Breku—who is neither an officer nor agent authorized, by
appointment or law, to receive service of process on behalf of
“Cigna”—signed the return receipt. Def.’s Mot. to Dismiss, ECF
No. 8-1 at 2. Ms. Perisic has conceded this argument by not
responding to it. See Campbell, 311 F. Supp. 3d at 327 n.13.
Nonetheless, “[f]ederal courts have held that formal
service is not required before removing a case.” Middlebrooks v.
Godwin Corp., 279 F.R.D. 8, 11 (D.D.C. 2011) (collecting cases).
“[E]ven to the extent that service may have been imperfect in
this case, the Court affords [Ms. Perisic], as a pro se
plaintiff, some leniency in applying the rules for effecting
service of process, particularly here, in which [Cigna] was
clearly put on notice of [Ms. Perisic’s] claims and was able to
timely file a motion to dismiss.” Roland v. Branch Banking & Tr.
Corp., 149 F. Supp. 3d 61, 66 (D.D.C. 2015) (denying the
defendant’s motion to dismiss the pro se plaintiff’s complaint
for improper service of process). For the same reasons, the
Court DENIES Cigna’s motion to dismiss on the grounds of
insufficient service of process.
Before considering Cigna’s next argument for dismissal
under Rule 12(b)(6), the Court observes that Ms. Perisic’s
Complaint fails to meet Federal Rule of Civil Procedure 8’s
requirements. See generally Compl., ECF No. 1-1. Rule 8 requires
31
that each complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief[,]” and
that “[e]ach allegation must be simple, concise, and direct.”
Fed. R. Civ. P. 8(a)(2), 8(d)(1). Ms. Perisic’s Complaint, which
contains thirty-seven pages, eighty-one numbered paragraphs, and
twenty-two footnotes, does not meet Rule 8’s short and plain
standard. See generally Compl., ECF No. 1-1.
Nevertheless, Ms. Perisic’s claims as to Cigna boil down to
allegations concerning the mismanagement of her dental benefits
under the World Bank’s retiree medical insurance plan for
employees and retirees. Specifically, Ms. Perisic alleges that
Cigna improperly denied payment for a dental implant procedure
performed by an out-of-network provider. See Compl., ECF No. 1-1
at 32-33 ¶¶ 74-75. Cigna argues that Ms. Perisic fails to state
a plausible claim for relief because “Ms. Perisic had no
unreimbursed dental expense and, therefore no damages.” Def.’s
Reply, ECF No. 16 at 3. Ms. Perisic disagrees, arguing that “it
can be seen from the documents and bills” that Defendants’
assertions are “false.” Pl.’s Opp’n, ECF No. 15 at 14. Cigna
contends that this Court cannot consider those documents because
Ms. Perisic did not attach them to her Complaint. Def.’s Reply,
ECF No. 16 at 3. Cigna’s position is inconsistent with D.C.
Circuit precedent.
Because of Ms. Perisic’s pro se status, the Court must
32
consider all the facts in her pleadings. See Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015)
(holding that a “district court should have considered the facts
alleged in all of [the pro se plaintiff’s] pleadings and, once
considered, should have concluded that [the plaintiff]
sufficiently stated his ADA claim to avoid 12(b)(6) dismissal”);
see also Magowan, 166 F. Supp. 3d at 58 (courts must consider
pro se litigant’s filings responsive to a motion to dismiss).
The Court, however, need “not accept as true . . . the
plaintiff’s legal conclusions or inferences that are unsupported
by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). Having considered Ms.
Perisic’s documents related to the issue of whether the out-of-
network provider waived her costs for the blood work, such
documentation fails to serve as a basis for any factual
allegations that could plausibly state a claim against Cigna.
Ms. Perisic’s conclusory allegations are not enough to meet the
plausibility standard. See, e.g., Twombly, 550 U.S. at 555
(“Factual allegations must be enough to raise a right to relief
above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)[.]”); Iqbal, 556 U.S. at 678 (“A pleading that offers
labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do.” (citation and internal
33
quotation marks omitted)).
Even when given the liberal construction afforded to pro se
pleadings, Ms. Perisic’s claims against Cigna wholly fail to
state a claim upon which relief can be granted. See Fed. R. Civ.
P. 12(b)(6). While Ms. Perisic argued that this case was not
about ERISA, she seeks health insurance benefits and pension
payments under the World Bank’s group benefits plan. See Compl.,
ECF No. 1-1 at 3 ¶ 3; see also Pl.’s Opp’n, ECF No. 15 at 13-14.
In her supplemental brief, Ms. Perisic contends that she may
assert an ERISA claim. Pl.’s Suppl. Mem., ECF No. 19 at 10.
Under ERISA, a governmental plan is exempt from the
statute’s coverage. 29 U.S.C. § 1003(b)(1) (“The provisions of
this subchapter shall not apply to any employee benefit plan if
. . . such plan is a governmental plan (as defined in section
1002(32) of this title)[.]”). ERISA defines a “governmental
plan” as “any plan of an international organization which is
exempt from taxation under the provisions of the [IOIA].” 29
U.S.C. § 1002(32) (emphasis added). According to Defendants,
ERISA does not govern the World Bank’s group benefits plan
because it is a governmental plan. See World Bank Defs.’ Mot. to
Dismiss, ECF No. 7 at 17; see also Def.’s Mot. to Dismiss, ECF
No. 8-1 at 3 (incorporating by reference the World Bank
Defendants’ arguments). Ms. Perisic states that “[i]n [her]
opinion this is not correct” because: (1) she “conveyed [the
34
World Bank’s federal identification number listed on an Internal
Revenue Service Form 1099-R] to the US Department of Labor[;]”
and (2) she participated in a “tri-party conference call with
Cigna” where “[i]t was then confirmed to [her] that [she] can
bring the claim for $575.00 under ERISA.” Pl.’s Suppl. Mem., ECF
No. 19 at 10. Contrary to Ms. Perisic’s assertions, the World
Bank’s group dental and vision plan is a “governmental plan”
exempt from ERISA under 29 U.S.C. § 1003(b)(1) because it is a
plan of an international organization, which is exempt from
taxation under the provisions of the IOIA. See 29 U.S.C. §
1002(32); see also Francisco S. v. Aetna Life Ins. Co., No.
2:18-CV-00010-EJF, 2019 WL 1358858, at *3 (D. Utah Mar. 26,
2019) (holding that the World Bank Group’s medical insurance
plan qualifies as a governmental plan exempt from ERISA’s
coverage).
Ms. Perisic fails to respond to Defendants’ argument that
she cannot state a claim under ERISA. See generally Pl.’s Opp’n,
ECF No. 15 at 1-14. The Court deems that argument as conceded.
See Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284
F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised
by the defendant, a court may treat those arguments that the
plaintiff failed to address as conceded.”), aff’d sub nom.
35
Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, United
Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). The Court
therefore finds that Ms. Perisic’s claims cannot withstand the
motion to dismiss. Accordingly, the Court GRANTS Cigna’s motion
to dismiss because Ms. Perisic fails to state a plausible claim
for relief. 9
D. Ms. Perisic’s Requests for Damages
Finally, Ms. Perisic argues that defense counsel attempted
to “intimidate” her, and that defense counsel improperly sent
her an Order from this Court. 10 Pl.’s Mot. to Remand, ECF No. 9
9 The Court did not order supplemental briefing on the merits of
Ms. Perisic’s Complaint. See Min. Order of Sept. 5, 2019. Ms.
Perisic, however, made arguments as to the merits of her claims
and raised new claims in her supplemental brief. See Pl.’s
Suppl. Mem., ECF No. 19 at 1-14. To the extent that Ms. Perisic
purports to assert claims against Defendants for reporting the
“wrong” amounts on IRS Form 1099-R, id. at 10-11, and violating
the Privacy Act of 1974, 5 U.S.C. § 552a, id. at 12-13, the
Court finds that Ms. Perisic has failed to plead facts that
would allow this Court to infer beyond the mere possibility of
Defendants’ alleged misconduct. See Magowan, 166 F. Supp. 3d at
58 (“[T]he pro se plaintiff must still plead factual matter that
permits the court to infer more than the mere possibility of
misconduct.”) (citation and internal quotation marks omitted).
Defendants argue—and the Court agrees—that “the Privacy Act
applies only to federal executive branch agencies and provides
no right of action against individuals or private entities.”
Defs.’ Suppl. Reply, ECF No. 20 at 2 n.1 (citing Martinez v.
Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006); Metro.
Life Ins. Co. v. Blyther, 964 F. Supp. 2d 61, 71 (D.D.C. 2013)).
10On September 4, 2018, the Court entered a Standing Order
governing this case. See generally Standing Order (Sept. 4,
2018), ECF No. 3. “A defendant removing an action to this Court
must refile as a supplement to the petition any answer and must
promptly ensure that all parties receive a copy of [the]
Standing Order.” Id. at 3 § 5. Federal Rule of Civil Procedure 5
36
at 6. Ms. Perisic seeks punitive damages to prevent similar
situations in the future, and “intangible damages” to prevent
the defense lawyers from engaging in “misconduct and
wrongdoing.” Id. at 7. Refuting Ms. Perisic’s allegations,
Defendants note that defense counsel contacted Ms. Perisic to
effectuate the removal procedures and to fulfill their
obligations and duties as prescribed in this Court’s Standing
Order, the Federal Rules of Civil Procedure, and the Local Civil
Rules. See Def.’s Opp’n, ECF No. 11 at 2-3; see also World Bank
Defs.’ Opp’n, ECF No. 13 at 4-5. Because the Court dismisses
this action, the Court need not address Ms. Perisic’s requests
for damages.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART the World Bank Defendants’ Motion to Dismiss,
GRANTS IN PART and DENIES IN PART Cigna’s Motion to Dismiss,
DENIES Ms. Perisic’s Motion to Remand, and DISMISSES WITHOUT
PREJUDICE this action. A separate Order accompanies this
sets forth the requirements for serving papers on every party.
See generally Fed. R. Civ. P. 5. The Standing Order instructs
each party, including a pro se litigant, to comply with the
Local Civil Rules. Standing Order, ECF No. 3 at 1 § 1; see also
LCvR 7(m) (“Before filing any nondispositive motion in a civil
action, counsel shall discuss the anticipated motion with
opposing counsel in a good-faith effort to determine whether
there is any opposition to the relief sought and, if there is,
to narrow the areas of disagreement. The duty to confer also
applies to non-incarcerated parties appearing pro se.”).
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Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 24, 2019
38