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Farias v. Massachusetts Laborers' Health & Welfare Fund

United States District Court, D. Massachusetts

January 9, 2018




         On July 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) under advisement.


         In 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.[1] 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), [2] timely removed this action to federal court based on federal question jurisdiction. (Docket Entry # 1-2).

         In lieu 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).

         Express 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.

         In 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.”[3] (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).

         At the 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).


         The 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).

         To 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 credited”).

         Thus, “[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 complaint'”).


         A. The Complaint

         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).

         Plaintiff 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 # 1-1).

         In 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, [4] had been prescribing the medication”[5]for a five-year period and, due to the ...

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