United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION TO
AMEND COMPLAINT (DOCKET ENTRY # 24); DEFENDANT'S MOTION
TO DISMISS COMPLAINT (DOCKET ENTRY # 16)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
13, 2017, defendant Express Scripts (“Express
Scripts”) filed a motion to dismiss this action with
prejudice under to Fed.R.Civ.P. 12(b)(6) (“Rule
12(b)(6)”). On August 3, 2017, plaintiff Christina
Farias (“plaintiff”) filed a motion to amend the
complaint under Fed.R.Civ.P. 15(a)(2) (“Rule 15”)
(Docket Entry # 24) to add specificity to a negligence claim.
She also filed an opposition to the motion to dismiss.
(Docket Entry # 23). Defendant Massachusetts Laborers'
Health and Welfare Fund (“the Fund”) did not file
a motion to join the motion to dismiss or a written
opposition to the motion to amend. At an October 25, 2017
hearing on the motions, however, the Fund asserted the
futility of the amendment as preempted by the Employee
Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. §§ 1001-1461. At the conclusion of the
hearing, this court took the motions (Docket Entry ## 16, 24)
April 2016, plaintiff filed a lawsuit in the United States
District Court for the District of Massachusetts. See
Farias v. Mass. Laborers' Health and Welfare Fund and
Express Scripts, Civil Action No.
16-10723-WGY. The action raises the same claims, i.e.,
breach of contract and negligence, brought in this case based
on the same incident. In September 2016, plaintiff
voluntarily dismissed the lawsuit after Express Scripts filed
a motion to dismiss. In May 2017, she filed this action with
the same breach of contract and negligence claims in
Massachusetts Superior Court (Middlesex County). The action
seeks to “recover for harm resulting from the
Defendants' refusal to prescribe medications.”
(Docket Entry # 26-1). In June 2017, the Fund, an ERISA
employee benefit plan (Docket Entry # 31-1, p.
55),  timely removed this action to federal
court based on federal question jurisdiction. (Docket Entry #
of filing a motion to dismiss, the Fund filed an answer and
asserted a crossclaim against Express Scripts. (Docket Entry
# 19). In the crossclaim, the Fund asserts that Express
Scripts mistakenly “locked down” all of
plaintiff's prescriptions, including her psychiatric
medications, to one pharmacy. The crossclaim further alleges
that Express Scripts rectified the mistake within seven days.
(Docket Entry # 19).
Scripts moves to dismiss the complaint because the complaint:
(1) fails to allege sufficient facts of a contract with
respect to the breach of contract claim and sufficient facts
of a duty owed to plaintiff to support the negligence claim;
(2) ERISA preempts the contract and negligence claims; and
(3) any attempt to amend the complaint with an ERISA denial
of benefits claim is futile as to Express Scripts and the
damages plaintiff seeks are not recoverable. (Docket Entry #
17). In opposing the motion to dismiss, plaintiff asserts
that the proposed amended complaint adds the requisite
factual detail to the negligence claim.
Count I for negligence, the proposed amended complaint
alleges that Express Scripts and the Fund
(“defendants”) had an “obligation to act
reasonably as to the disbursement of medication” and a
duty to “follow and abide by state statutory and
regulatory law.” (Docket Entry # 24-1). Because the
negligence claim centers on a “failure to follow state
law statutes and regulations, ” it “is outside
the scope of ERISA, ” according to plaintiff. (Docket
Entry # 23). In Count II for breach of contract, the proposed
amended complaint alleges that defendants had “an
obligation to arrange for disbursement of medication”
and breached that obligation thereby causing plaintiff harm.
(Docket Entry # 24-1).
October 25, 2017 hearing on the motions (Docket Entry ## 16,
24), plaintiff initially argued the motion to amend. In
reply, the Fund acknowledged its lack of a “formal
opposition” to the motion to amend and, consistent with
Express Scripts' opposition (Docket Entry # 26), argued
that ERISA preempted the state law claims for negligence and
contract. The Fund concluded the argument by stating,
“That's my position on the motion to amend.”
(Docket Entry # 32). Accordingly, this court will consider
the Fund's oral arguments as opposing the motion to
amend. As noted, the Fund did not join the motion to dismiss,
which Express Scripts presented after the Fund made the
foregoing arguments. Having preserved the defense of a
failure to state a claim for relief in its answer (Docket
Entry # 19), the Fund avoids any prejudice because it retains
the ability to file a motion for judgment on the pleadings.
See Fed.R.Civ.P. 12(h)(2)(B).
standard of review of a motion to amend is well-settled.
Leave to amend under Rule 15 is “freely given when
justice so requires” absent an adequate basis to deny
amendment such as “futility, bad faith, undue delay or
a dilatory motive.” Fed.R.Civ.P. 15(a)(2); Maine
State Building and Construction Trades Council, AFL-CIO v.
United States Dep't of Labor, 359 F.3d 14, 19 (1st
Cir. 2004) (internal quotation marks omitted); see also
United States ex rel Gagne v. City of Worcester, 565
F.3d 40, 48 (1st Cir. 2009) (outlining instances where denial
of leave to amend would arise). Futility constitutes an
adequate basis to deny amendment. See Universal
Communications Systems, Inc. v. Lycos, Inc., 478 F.3d
413, 418 (1st Cir. 2007); Maine State Building and
Construction Trades Council, AFL-CIO v. United States
Dep't of Labor, 359 F.3d at 19. “An amendment
is futile if it could not withstand a Rule 12(b)(6) motion to
dismiss.” Menard v. CSX Transp., Inc., 840
F.Supp.2d 421, 427 (D. Mass. 2012).
survive a Rule 12(b)(6) motion to dismiss, the complaint must
include factual allegations that, when taken as true,
demonstrate a plausible claim to relief even if actual proof
of the facts is improbable. See Bell Atlantic v.
Twombly, 550 U.S. 544, 555-558 (2007); see also
Kenney v. State St. Corp., Civ. Action. No.
09-10750-DJC, 2011 WL 4344452, at *2 (D. Mass. Sept. 15,
2011) (applying Rule 12(b)(6) Twombly standard in
assessing futility of proposed amendment). Thus, although
“not equivalent to a probability requirement, the
plausibility standard asks for more than a sheer possibility
that a defendant has acted unlawfully.” Boroian v.
Mueller, 616 F.3d 60, 65 (1st Cir. 2010) (internal
quotation marks omitted); accord Saldivar v. Racine,
818 F.3d 14, 18 (1st Cir. 2016); Feliciano-Hernandez v.
Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011).
“[A]ccepting as true all well-pleaded facts in the
complaint and making all reasonable inferences in the
plaintiff's favor, ” Boroian, 616 F.3d at
64, the “factual allegations ‘must be enough to
raise a right to relief above the speculative
level.'” Gorelik v. Costin, 605 F.3d 118,
121 (1st Cir. 2010); Gargano v. Liberty International
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009)
(court “accept[s] as true all well pleaded facts in the
complaint and draw[s] all reasonable inferences in favor of
the plaintiff”). Legal conclusions are not included in
the Rule 12(b)(6) record. See Dixon v. Shamrock Financial
Corp., 522 F.3d 76, 79 (1st Cir. 2008)
(accepting “well-pleaded facts as true, but reject[ing]
‘unsupported conclusions or interpretations of
law'” in reviewing Rule 12(b)(6) dismissal);
see, e.g., Soto-Torres v.
Fraticelli, 654 F.3d 153, 157 n.2 (1stCir.
2011) (“complaint's allegations that Soto-Torres
was ‘illegally and unreasonabl[y] detained' and
that ‘excessive force' was used in pushing him to
the floor are legal conclusions that are not to be
“[t]o survive a motion to dismiss, the complaint must
allege ‘a plausible entitlement to relief.'”
Correa-Ruiz v. Fortuno, 573 F.3d 1, 8 (1st Cir.
2009); see also Fitzgerald v. Harris, 549 F.3d 46,
52 (1st Cir. 2008). Because the complaint and the proposed
amended complaint reference the insurance health care
coverage plaintiff obtained through the Fund (Docket Entry #
1-1, ¶ 4) (Docket Entry # 24-1, ¶ 4), this court
can consider the Fund's Summary Plan Description (Docket
Entry # 31-1) of the health care coverage when deciding the
motion to dismiss and the futility argument relative to the
motion to amend. See Claudio-De Leon v. Sistema
Universitario Ana G. Mendez, 775 F.3d 41, 46 (1st Cir.
2014) (“we, like the district court, may consider . . .
‘documents central to plaintiffs' claim, ' and
‘documents sufficiently referred to in the
facts set out in the original complaint are as follows. The
Fund provides healthcare coverage for participants who work a
certain number of hours in covered employment with a
contributing employer. (Docket Entry # 31-1). As stated in
the Summary Plan Description, the Fund, i.e., the
Massachusetts Laborers' Health and Welfare Fund, is a
“Qualified Employee Health and Welfare Benefit Plan
that provides medical care” and other “benefits
to eligible employees and their qualified dependents”
(“the plan”). (Docket Entry # 31-1, p. 55). As
the plan administrator, the Board of Trustees of the Fund and
other individuals with delegated responsibility “have
discretionary authority to interpret the terms of the
plan.” (Docket Entry # 31-1, p. 55).
suffers from depression and a bipolar disorder, for which she
was prescribed Latuda, Zoloft, and Lamictal. (Docket Entry #
1-1). She obtains healthcare coverage through her spouse, a
participant in the plan as a member of a union. (Docket Entry
November 2015, the Fund advised plaintiff that she would be
placed in a “pharmacy lock-in program.” (Docket
Entry # 1-1). The program required her to obtain certain
prescriptions from predetermined pharmacy locations in order
for the Fund to pay for “controlled substances.”
(Docket Entry # 1-1). These “controlled
substances” included only Lyrica, which plaintiff
confirmed with both the preselected pharmacy and the Fund.
(Docket Entry # 1-1). The preselected pharmacy was located at
1145 Kempton Street in New Bedford, Massachusetts. (Docket
Entry # 1-1). Other prescriptions, i.e., Latrida and
Loncodical, became subject to the lock-in program soon after
its November 2015 enactment. As a result, the Fund required
plaintiff to obtain a prescription for these medications from
her primary care physician. (Docket Entry # 1-1).
Plaintiff's “psychologist, Dr. Munir,
been prescribing the medication”for a five-year
period and, due to the ...