Summary
holding that "Defendant's factual challenge to plaintiff's standing as an assignee is meritorious"
Summary of this case from MSP Recovery, LLC v. Allstate Ins. Co.Opinion
Case No. 16-20486-CIV-WILLIAMS
08-29-2016
MSPA CLAIMS 1, LLC, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.
Brian Phillip Cournoyer, Christine Marie Lugo, Eric Michael Fresco, Miami, FL, Frank Carlos Quesada, Gustavo Javier Losa, John Hasan Ruiz, Justin Tolley, Timothy J. Van Name, Arlenys Perdomo, MSP Recovery Law Firm, Gino Moreno, La Ley Law Firm, Rebecca Rubin-Del Rio, John H Ruiz PA, Miami, FL, for Plaintiff. Marcy Levine Aldrich, Valerie B. Greenberg, Akerman LLP, Stacy Jaye Rodriguez, Akerman Senterfitt, Miami, FL, for Defendant.
Brian Phillip Cournoyer, Christine Marie Lugo, Eric Michael Fresco, Miami, FL, Frank Carlos Quesada, Gustavo Javier Losa, John Hasan Ruiz, Justin Tolley, Timothy J. Van Name, Arlenys Perdomo, MSP Recovery Law Firm, Gino Moreno, La Ley Law Firm, Rebecca Rubin-Del Rio, John H Ruiz PA, Miami, FL, for Plaintiff.
Marcy Levine Aldrich, Valerie B. Greenberg, Akerman LLP, Stacy Jaye Rodriguez, Akerman Senterfitt, Miami, FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DISMISSING AND CLOSING CASE
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the motion to dismiss Plaintiff's Amended Complaint filed by Defendant United Automobile Insurance Company (DE 23), to which Plaintiff MSPA Claims 1, LLC filed a response in opposition (DE 26), and Defendant a reply. (DE 28). Upon review of the motion and the record, it is ORDERED AND ADJUDGED that the motion to dismiss is GRANTED and that this case is ordered DISMISSED AND CLOSED.
I. BACKGROUND
According to the Amended Complaint, Defendant issues insurance policies in the state of Florida that provide coverage for personal injury protection benefits as well as medical expenses. (DE 21). Some of Defendant's insureds enrolled with Florida Healthcare Plus ("FHCP"), a now-defunct health maintenance organization. Plaintiff claims that Defendant failed to reimburse FHCP for medical payments that FHCP made on behalf of its enrollees, which Defendant was obligated to pay under the Medicare Secondary Payer Act and related regulations. Plaintiff further alleges that it has standing to bring suit against Defendant for reimbursements the insurance company should have paid to FHCP because FHCP assigned its rights to reimbursement to La Ley Recovery Systems, Inc., ("La Ley") on April 15, 2014 (the "La Ley Agreement"), and La Ley in turn assigned those rights to Plaintiff on February 20, 2015 ("Plaintiff's Assignment"). (DE 21-1).
II. LEGAL STANDARD
Defendant moves to dismiss Plaintiff's claims for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1), which encompasses challenges based on the court's lack of federal subject matter jurisdiction and lack of standing. Stalley v. Orlando Re gion al Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.2008) ("Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).") (internal quotations omitted). Indeed, standing is a threshold jurisdictional requirement that remains open to review at all stages of the litigation. Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) ; Stalley , 524 F.3d at 1232.
A challenge to standing under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be presented as either a facial or factual attack. McElmurray v. Consol. Gov't of August – Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir.2007). Facial attacks challenge standing based on the allegations in the complaint, which the district court takes as true when considering the motion. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). In contrast, factual attacks challenge the existence of standing in fact, and in such cases "no presumptive truthfulness attaches to plaintiff's allegations." Id. For factual attacks, a court may consider testimony and affidavits irrespective of the pleading. McElmurray, 501 F.3d at 1251. Defendant mounts both a facial and factual attack to Plaintiff's standing to bring suit, so the Court addresses these arguments in turn. (DE 23 at 9-13).
III. DISCUSSION
Defendant's principal argument is that Plaintiff lacks standing because Plaintiff was not validly assigned FHCP's reimbursement rights before bringing suit. Plaintiff argues that it has standing to bring its claims because FHCP assigned its rights to La Ley (a party with which the Court is already familiar ), which in turn assigned them to Plaintiff. Plaintiff appended a heavily redacted copy of the La Ley Agreement to its Amended Complaint. (DE 21-1). The Court may, however, take judicial notice of the full, unredacted copy of the agreement that was filed in another lawsuit , which unveils the following provision:
See, e.g., La Ley Recovery Systems – OB, Inc. v. Aetna Health Ins. Co., No. 14–cv–22809–KMW (S.D.Fla.); La Ley Recovery Systems – OB, Inc. v. Blue Cross & Blue Shield of Fla., Inc., No. 14–cv–23543–KMW (S.D.Fla.); La Ley Recovery Systems – OB Inc. v. Cigna Health & Life Ins. Co., et al., No. 14–cv–23466 (S.D.Fla.); La Ley Recovery Systems – OB, Inc. v. United Healthcare Ins. Co., No. 14–cv–23432–KMW (S.D.Fla.). Similar to these cases, Plaintiff filed a slew of lawsuits against insurance companies, including the instant case, seeking to pursue rights for reimbursements based on the purported assignment from Florida Healthcare Plus ("FHCP"). (DE 6; DE 17).
The Court takes judicial notice of the assignment agreement between FHCP and La Ley Recovery Systems, Inc. ("La Ley"), which was filed in FHCP's receivership proceedings in Florida state court (the "La Ley Agreement"). (DE 23-1 at 32-36). See Burtoff v. Tauber, No. 10–62034–CIV, 2011 WL 248547, at *1 n. 5 (S.D.Fla. Jan. 24, 2011) (finding that a court may take judicial notice of documents filed in another case); see also U.S. v. McKeon, 738 F.2d 26, 31 (2d Cir.1984) ("Plaintiffs "cannot advance one version of the facts in [their] pleadings, conclude that [their] interests would be better served by a different version, and amend [their] pleadings to incorporate that version, safe in the belief that the trier of fact will never learn of the change in stories."). The Court also has authority to consider the La Ley Agreement because it is central to Plaintiff's claims and is undisputed. New Wave Innovations, Inc. v. Greenberg, No. 14–cv–24544, 2015 WL 5118130, at *3 (S.D.Fla. Aug. 31, 2015).
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1.2 Term: The term of this Agreement shall be for one (1) year from the date of execution herewith, with an automatic renewal for an additional one (1) year period unless terminated at any time by the parties with ninety (90) day prior written notification. La Ley Recovery may assign the Agreement in whole or in part but the assignee must be approved by the Client.
(DE 23-1 at 33); see also Am. Compl., MSPA Claims 1, LLC v. Sec. Nat'l Ins. Co., No. 16-cv-20328-RNS, DE 16-1 (S.D. Fla. Mar. 4, 2016). The La Ley Agreement defines "Client" as FHCP. (DE 23-1 at 32).
In this case, the Amended Complaint fails to allege that FHCP approved Plaintiff's Assignment. (See DE 21 ¶ 52-54). Thus, based on Defendant's facial challenge, Plaintiff does not have standing to bring this action because it does not hold a valid assignment. See MSPA Claims 1, LLC v. Nat'l Specialty Ins. Co., et al., No. 16–CV–20401–MGC, DE 61, 2016 WL 4479372 (S.D.Fla. Aug. 25, 2016) ; MSPA Claims 1, LLC v. Tower Hill Prime Ins. Co., No. 16–CV–20459–KMM, DE 42, 2016 WL 4157592 (S.D.Fla. Aug. 3, 2016) ; MSPA Claims 1, LLC v. Tower Hill Prime Ins. Co., 16–CV–20460–KMM, DE 27, 2016 WL 4157593 (S.D.Fla. Aug. 3, 2016) ; MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., No. 16–CV–20212–JLK, DE 35, 2016 WL 4154266 (S.D.Fla. July 27, 2016).
The Court further finds that Defendant's factual challenge to Plaintiff's standing as an assignee is meritorious. La Ley and Florida's Department of Financial Services ("DFS"), in its capacity as FHCP's receiver, engaged in a lengthy dispute regarding the La Ley Agreement. Specifically, in the order appointing DFS as FHCP's receiver, which is dated December 10, 2014, DFS repudiated the La Ley Agreement. (DE 23-1). DFS then repeatedly repudiated the La Ley Agreement by letters dated February 5, 2015, April 23, 2015, and June 10, 2015. (DE 23-1 at 37, 65-67). Any doubt that DFS approved Plaintiff's Assignment, which is dated February 20, 2015, is eviscerated by DFS's April 23, 2015 and June 10, 2015 letters, and finally DFS's September 18, 2105 petition to the receivership court asking it to enjoin La Ley and any assignees or affiliates from any further collection activity based on the La Ley Agreement. (DE 23-1).
The only evidence Plaintiff offers to rebut Defendant's factual challenge to it standing is the settlement agreement between it and DFS, which purports to settle and resolve any remaining disputes between the parties as to their rights. (DE 33). The Court finds the decision in MSPA Claims 1, LLC v. Nat'l Specialty Ins. Co., et al., No. 16–CV–20401–MGC, DE 61, 2016 WL 4479372 (S.D.Fla. Aug. 25, 2016) persuasive on this issue. To the extent Plaintiff asks the Court to rely on the settlement agreement to show that it was validly assigned La Ley's rights to pursue FHCP's claims against Defendant, the Court takes notice that the settlement agreement was entered on June 1, 2016, half a year after Plaintiff initially filed suit against Defendant. (DE 1-1; DE 33). "Article III standing must be determined as of the time at which the plaintiff's complaint is filed." Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir.2003) ; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[S]tanding is to be determined as of the commencement of suit."); Live Entm't, Inc. v. Digex, Inc., 300 F.Supp.2d 1273, 1279–80 (S.D.Fla.2003) (dismissing case for lack of standing where plaintiff could not demonstrate it was either a party to a contract or a valid assignee). Thus, Plaintiff cannot create standing by referencing this later-filed agreement. Tucker v. Phyfer, 819 F.2d 1030, 1034 (11th Cir.1987) ("Article III requires that a plaintiff's claim be live not just when he first brings suit, but throughout the litigation."); Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1282–83 (5th Cir.1981) (holding that where a plaintiff did not have standing to assert a claim against the defendants, it likewise "does not have standing to amend the complaint and control the litigation ... ").
IV. CONCLUSION
For these reasons, Defendant's motion to dismiss (DE 23) is GRANTED. Plaintiff's Amended Complaint (DE 21) is DISMISSED. All pending motions are DENIED AS MOOT. The Clerk is directed to CLOSE this case.
DONE AND ORDERED in chambers in Miami, Florida, this 29th day of August, 2016.