Rois-Mendez v. California Physicians' Service

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ALEK ROIS-MENDEZ, Case No. 20-cv-02227-MMC

Plaintiff,

ORDER DENYING DEFENDANT'S

v. MOTION TO DISMISS PLAINTIFF'S

FIRST AMENDED COMPLAINT

CALIFORNIA PHYSICIANS' SERVICE DBA BLUE SHIELD OF CALIFORNIA,

Defendant.

Before the Court is defendant California Physicians’ Service dba Blue Shield of California’s (“Blue Shield”) Motion, filed October 28, 2020, “to Dismiss Plaintiff’s First Amended Complaint.” Plaintiff Alek Rois-Mendez (“Rois-Mendez”) has filed opposition, to which Blue Shield has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.1

BACKGROUND2 At all relevant times, Rois-Mendez was an enrolled Subscriber in a “group employee welfare benefit plan” (“the Plan”) administered by Blue Shield. (See FAC ¶¶ 12-14.) In 2019, Rois-Mendez was diagnosed with parotid gland cancer,3 after which a team of treating physicians at Cedars-Sinai Samuel Oschin Comprehensive Cancer Institute (“Cedars-Sinai”) determined proton beam radiation therapy (“PBRT”)4 “was the

Complaint (“FAC”).

On June 10, 2019, California Protons submitted, to Blue Shield, a Request for Prior Authorization for Rois-Mendez’s PBRT treatment, which request Blue Shield denied on the ground that PBRT is “investigational.” (See FAC ¶¶ 18-20 (internal quotation and citation omitted).) On July 1, 2019, Rois-Mendez and California Protons submitted, to Blue Shield, a request for expedited appeal of its denial of prior authorization, which request Blue Shield denied, and, on August 8, 2019, California Protons received a letter from Blue Shield, dated August 2, 2019, “wherein Blue Shield upheld its denial of [Rois- Mendez’s] request for PBRT ‘because [his] health plan specifically exclude[d] benefits for services that are experimental or investigational.’” (See id. ¶¶ 21-22, 24 (quoting id. Ex. C).) “Meanwhile, due to medical exigency,” Rois-Mendez began his PBRT treatment with California Protons and paid for that treatment “out-of-pocket” (see id. ¶¶ 23, 47), after which, on January 23, 2020, he submitted, to Blue Shield, a post-service claim for his out-of-pocket payments (see id. ¶¶ 23, 25). As of the date the FAC was filed, April 3, 2020, Rois-Mendez has not received any response from Blue Shield regarding his post- service claim. (See id. ¶ 27.)

Based on the above, Rois-Mendez asserts, pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), two Causes of Action, titled, respectively, “Denial of Plan Benefits Under ERISA” and “Equitable Relief.”

DISCUSSION A. Motion to Dismiss

In its Motion to Dismiss, Blue Shield argues the FAC is subject to dismissal, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction. Specifically, Blue Shield argues, Rois-Mendez lacks standing to bring that, when PBRT is administered, “protons deposit much of their radiation directly in the tumor and then stop,” thereby allowing patients to receive higher doses of radiation “while the instant claims because, contrary to the allegations in the FAC, Blue Shield has already paid California Protons “for the majority of the PBRT [he] has received,” and has denied the “small number of remaining unpaid claims . . . for reasons other than the investigative/experimental exclusion.” (See Mot. at 1:9-14 (emphasis omitted); see also Mot. at 2:25-27.) In support of such argument, Blue Shield submits numerous “Explanations of Benefits,” which provide information as to Blue Shield’s review and processing of the claims submitted by California Protons. (See Decl. of Leslie Crawford ¶¶ 4-5, Exs. A & B.)

“Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, such as the one made here by Blue Shield, “the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” See id. In resolving a factual attack on jurisdiction, “the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment,” and “[t]he court need not presume the truthfulness of the plaintiff's allegations.” See id. The party opposing the motion bears the burden of establishing subject matter jurisdiction, and, once the moving party has submitted declarations or other admissible evidence, the party opposing the motion must submit evidence sufficient to satisfy that burden. See id.5

To establish Article III standing, a plaintiff must have “suffered an injury in fact” that is “fairly traceable to the challenged conduct” and is “likely to be redressed by a favorable judicial decision.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Here, Blue Shield, relying on the first two requirements, argues Rois-Mendez “has not suffered any

Accordingly, the Court will deny Blue Shield’s Motion to Dismiss.

B. Rois-Mendez’s Request for Leave to Amend FAC

In his opposition to the instant motion, Rois-Mendez requests leave to amend the FAC to add two causes of action, namely, “intentional interference with contractual

1. Blue Shield’s Motion to Dismiss is hereby DENIED.

2. Rois-Mendez’s request for leave to amend the FAC is hereby DENIED, 12 || without prejudice to his filing a noticed motion requesting such leave. 13 IT IS SO ORDERED.

Dated: January 25, 2021 (rere Chats

INE M. CHESNEY 0 16 United States District Judge g 17