Pushkin v. Nussbaum et al, No. 2:2012cv00324 - Document 286 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Kevin McNulty on 9/11/14. (DD, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY DR. DAVID B. PUSHKIN, S Civ. No. 2:12-0324 (KM) (MAH) Plaintiff, V. OPINION BETH R. NUSSBAUM, RHI ENTERTAINMENT, INC., TIMOTHY J. QUINLIVAN, MERITAIN HEALTH, INC., KEVIN L. BREMER, ESQ., ARONSOHN WEINER AND SALERNO, L.L.C., GEICO, PREMIER PRIZM SOLUTIONS, LISA ARDRON, GINA FUGE, DOMINIC SPAVENTA, PAUL FELDMAN, Defendants. KEVIN MCNULTY, U.S.D.J.: This matter comes before the Court upon the motion of the Plaintiff, David B. Pushkin, for leave to amend the Second Amended Complaint (Docket No. 275). Briefs in opposition are filed by: (1) Meritain Health, Inc. ( Meritain Health ) and Timothy J. Quinlivan, Esq. ( Quinlivan), (collectively the Meritain Defendants ) (Docket No. 278); (2) Kevin L. Bremer, Esq. ( Bremer ) and Aronsohn Weiner & Salerno, P.C. ( AWS ) (Docket No. 280); (3) GEICO, Lisa Ardon ( Ardon ), Gina Fuge ( Fuge ), Dominic Spaventa ( Spaventa ) and Paul Feldman ( Feldman ) (collectively the GEICO Defendants ) (Docket No. 281); (4) Premier Prizm Solutions, LLC ( PPS ) (Docket No. 282); (5) RHI Entertainment, Inc. ( RHI ) (Docket No. 283); and (6) Beth R. Nussbaum ( Nussbaum ) (Docket No. 284). Pushkin filed a consolidated reply brief on July 1 10, 2014 (Docket No. 285). Pursuant to FED. R. Civ. P. 78, this motion is decided without oral argument. For the reasons set forth below, Plaintiff s motion is denied. I. BACKGROUND a. Procedural history On or about November 30, 2010, Pushkin flied an initial complaint against Defendants Nussbaum, RHI, Quinlivan, Meritain Health, Bremer, and AWS, seeking to recover damages allegedly stemming from the denial of medical coverage and benefits to which Pushkin believes he was entitled. (Docket No. 2). On February 17, 2011, Pushkin filed an Amended Complaint naming additional Defendants, including the GEICO Defendants and PPS. (Docket No. 13). All Defendants filed motions to dismiss the (First) Amended Complaint. By Opinion and Order dated April 24, 2013 (Docket Nos. 227, 228), the Hon. Dennis M. Cavanaugh dismissed the Amended Complaint for lack of specificity and failure to comply with Rule 8 s requirement of a short and plain statement of the claim. FED. R. CIV. P. 8(a)(2). That dismissal was without prejudice; Plaintiff was granted leave to amend the complaint. The case was reassigned to me on April 3, 2014. On July 26, 2013, Pushkin filed the Second Amended Complaint ( 2AC ). (Docket No. 232). All defendants filed motions to dismiss the 2AC, alleging that the 2AC had not cured the deficiencies of Plaintiff s dismissed Amended Complaint. (Docket Nos. 241, 243, 244, 247, 252, 253). By Opinion and Order dated April 15, 2014, I granted the defendants motions and dismissed the 2AC. My Order provided 2 that, unless Plaintiff moved for leave to amend his com plaint a third time within 30 days and that motion was granted, the dism issal of the 2AC would be with prejudice. On May 5, 2014, Plaintiff filed a motion for leave to amend the 2AC (Docket No. 275). On May 22, 2014, I ordered defe ndants to respond, directing them to focus on the issue of futility, and auth orizing them to to incorporate by reference arguments from prior filings. (Doc ket No. 277) All defendants filed briefs in opposition, asserting that the Prop osed Third Amended Complaint ( P3AC ) had not cured the defic iencies of the dismissed 2AC. b. Factual allegations The following factual allegations are taken from the P3AC. For purposes of this motion, they are accepted as true. In general, Push kin has sued his ex wife, her former employer, her lawyers, health and auto insurers, third party administrators, and others. He holds them collectively responsible for, inter alia, his failure to receive insurance reimbursement for certain injuries from his ex-wife s health insurer and an auto insurer. Dr. Pushkin is a science educator, formerly employe d by Bergen Community College and Fairleigh Dickinson University. He sustained an injury in August 2005 and was diagnosed with a lumbar spinal fracture between November 26, 2006 and January 22, 2007. On January 28, 2008, he sustained additional spinal injury in a motor vehicle accident. On March 21, 2007, he underwent fusion surgery on his lumbar spine. Pushkin asserts that by the end of 2008, he was no longer capable of performing dutie s associated with 3 ent was terminated on teaching chemistry and physics, and his employm fits and has not been December 18, 2008. He filed for unemployment bene employed since. 2003. They separated Dr. Pushkin married Nussbaum on December 28, or about July 28, 2009, and on February 12, 2009. Pushkin filed for divorce on er, an attorney employed by the divorce was finalized January 8, 2010. Brem in the divorce AWS, a New Jersey law firm, represented Nussbaum an employee of RHI and was proceedings. During the marriage, Nussbaum was ( RHI Plan ). Pushkin, as covered under the RHI employee benefit health plan Plan between 2003 and Nussbaum s spouse, received benefits under the RHI rator ( TPA ) of the RHI 2009. Meritain Health was the Third Party Administ tain Health during the Plan. Quinlivan was an attorney employed by Meri and Quinlivan made false relevant time period. Pushkin alleges that Meritain rtment of Banking and claims about his coverage to the New Jersey Depa e, and the U.S. Department of Insurance, the New York Attorney General s Offic Labor. terminated by RHI. In November 2008, Nussbaum s employment was and Nussbaum received From November 2008 to September 2009, Pushkin baum terminated her additional COBRA health insurance coverage. Nuss alleges that he was eligible COBRA coverage on September 21, 2009. Pushkin further states that he . for an additional eleven months of COBRA coverage He September 21, 2009. was not advised of his eligibility for benefits beyond es fraud, breach of It may be gleaned that, against RHI, Pushkin alleg 4 contract, interference with his access to healthcare benefits, interference with his right to hold and convey real and personal property, violations of the New Jersey Group Insurance Coverage Discontinuance and Replacement Law, the American Recovery and Reinvestment Act of 2009 ( ARRA ), the 2010 Recov ery Act s COBRA Health Insurance Continuation Premium Subsidy, the Consolidated Omnibus Budget Reconciliation Act ( COBRA ), and many additional New Jersey statutes. Pushkin also alleges that Meritain and RHI interfered with his access to medical care and filed a lien that prevented him from receiving the settlement proceeds resulting from his motor vehicle accident. Pushkin maintained auto insurance coverage with GEICO. PPS is a TPA of Personal Injury Protection Benefits ( PIP ) for GEICO. Spaventa, Fuge, Ardron, and Feldman were GEICO employees at the time Pushkin filed his motor vehicle claim. Spaventa and Fuge handled the claim, Ardron superv ised Spaventa and Fuge, and Feldman supervised Ardron. Pushkin alleges that after his car accident, GEICO, PPS, and employees Spaventa, Fuge, Ardron , and Feldman made false claims to the New Jersey Department of Banking and Insurance, committed fraudulent acts, breached fiduciary duties, and violate d many New Jersey statutes. The P3AC also alleges that Nussbaum mistreated Pushkin during the course of their marriage and divorce, particularly in relation to his injurie s. Through correlation of certain of the counts with certain of the factual allegations, it may be gathered, with difficulty, that against Nussbaum, 5 Pushkin alleges negligence, fraud, perjury, conspiracy, and violations of the Americans with Disabilities Act ( ADA ), the Persons with Disabilities Civil Rights Act ( PDCRA ), the 2010 Recovery Act s COBRA Health Insurance Continuation Subsidy, the American Recovery and Reinvestment Act of 2009 and ( ARRA ), the Consolidated Omnibus Budget Reconciliation Act ( COBRA ), by the Social Security Act. Pushkin also alleges that Nussbaum mistreated him forcing him to perform tasks, keeping an unsafe home environment, threatening to evict him, interfering with his right to hold and convey real property, threatening him during their divorce negotiations, and interfering with his medical care and insurance. In many of these allegations, Pushkin includes Bremer, Nussbaum s divorce attorney, and AWS, the law firm at which Bremer worked while representing Nussbaum. II. LEGAL STANDARD a. FED. R. Cxv. P. 15(a)(2) Under FED. R. Civ. P. 15(a)(2), a court should give leave for a plaintiff to amend his pleading when justice so requires. The Court may deny a motion y to amend the pleadings where there is: (1) undue delay, (2) bad faith or dilator to motive, (3) undue prejudice, (4) futility of amendment, or (5) repeated failure , correct deficiencies. Foman v. Davis, 371 U.S. 178, 182 (1962); Long v. Wilson 393 F.3d 390, 400 (3d Cir. 2004). Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed or immediately subject to summary judgment for the defendant. Am. Corporate Soc y v. Valley Forge Ins. Co., 424 F. App x 86, 90 (3d Cir. 2011) (internal citations omitted). 6 Therefore, one test for whether an amended complaint would be futile is the standard for a motion to dismiss under FED. R. Civ. P. 12(b)(6). In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). b. FED. R. Civ. P. 8 AND 12(B)(6) Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. Civ. P. 8(a). A complaint must plead facts sufficient to suggest a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236 n. 12 (3d Cir. 2004). In deciding a motion to dismiss under Rule 12(b)(6), a district court is required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). [A] complaint attacked by a. . . motion to dismiss does not need detailed factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff s obligation to provide the grounds of his entitle[mentj to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. (internal citations omitted). [A 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). Instead, assuming that the factual allegations in the complaint are true, those [1]actual allegations must be enough to raise a right to relief above a speculative level. Twombly, 550 U.S. at 555. 7 To survive a motion to dismiss, a complaint must contain sufficient on factual matter, accepted as true, to state a claim to relief that is plausible 550 its face. Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Twombly, t U.S. at 570). A claim has facial plausibility when the pleaded factual conten liable allows the court to draw the reasonable inference that the defendant is for misconduct alleged. Id. Determining whether the allegations in a ing complaint are plausible is a context-specific task that requires the review le, court to draw on its judicial experience and common sense. Young v. Spezia *3 (D.N.J. Nov. 10, 2009) (quoting Civ. No. 07-03 129, 2009 WL 3806296, at Igbal, 556 U.S. at 679). [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief. Igbal, 556 U.S. at 679. To decide a motion to dismiss, courts generally consider only the and allegations contained in the complaint, exhibits attached to the complaint matters of public record. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). The complaint must show an entitlement to relief with its facts. Steedley v. McBride, 446 F. App x 424, 425 (3d Cir. . 2011) (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 2011 (3d Cir. 2009)) A document filed pro se is to be liberally construed, and a pro se rds complaint, however inartfully pleaded, must be held to less stringent standa 94 than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, er, (2007) (internal citations omitted) (internal quotation marks omitted). Howev 8 this normally liberal standard of amendment mus t be considered in light of the fact that this is not a first, but a third, amended complaint. III. DISCUSSION The P3AC fails to correct many of the deficienci es found in the 2AC. To be sure, the P3AC makes certain improvements: for the first time, we find numbered paragraphs; titled causes of action (e.g. , Cause of Action related to Personal Injury and Negligence ); and incorpora tion by reference of factual allegations under each titled cause of action. How ever, the P3AC ultimately fails to plead facts sufficient to put any of the defe ndants on notice as to how their actions could plausibly result in liability. ft is generally clear, for example, that Pushkin is aggrieved by his ex wife s treatment of him, the expiration of COBRA health insurance he enjoyed through his ex-wife s employer, certain insurers failure to pay claims, the conduct of his ex-wife s attorneys, and so on. I have no reason to doubt that Plaintiff s physical injuries are causing him distr ess, that he feels abused by his ex-wife s lawyers, or that the aftermath of his divorce left him without the benefit of the couple s combined resources, including insurance. Those circumstances, however, do not necessarily trans late to a federal court action against all of the many parties involved. Miss ing are allegations as to who did what, and when, and what cause of action is asser ted against each defendant. The factual allegations of the P3AC, when they are not simply irrelevant, are so conclusory as to leave the reader in the dark . To take an example at random: 9 , Defendants Between February 1, 2008 and February 1, 2010 Ardron, Spaventa GEICO and/or PPS and/or employees Fuge, ched fiduciary and/or Feldmann willfully and repeatedly brea medical coverage and duties to Plaintiff and his contractual health/ January 28, 2008 benefits on medical claims related to Plaintiff s MVA. P3AC problem. The final ten factual ¶ 34. There is also a group pleading allegations (P3AC by all twelve ¶J 38-47) cite the collective actions action specifies the defendant or Defendants. None of the numbered causes of defendants against which it is directed. of federal statutes. Those The P3AC, like its predecessors, contains lists ing to causes of action (e.g., statutes are now organized under labels relat ce Contract ), and the causes of Cause of Action related to Breach of Insuran the statement of fact. This action incorporate by reference paragraphs from clarity as to how any particular organization, however, provides no additional d statutes or how any defendant s conduct violated any one of the liste l cause of action. particular statute provides Plaintiff with an actua and Negligence, cites 28 Count I, for example, entitled Personal Injury U.S.C. jurisdictional provisions. It also § 1391 and 1331, which are venue and cites 42 U.S.C. civil rights conspiracy), § 1986 (failure to prevent a section 1985 but alleges no such ears to fall outside § 1985 conspiracy, and on its face it app ts are specifically identified in the one-year statute of limitations. No defendan ence sixteen of the factual this (or any) Count. Count I incorporates by refer glean from this selection what is allegation paragraphs, but it is impossible to ations seem potentially to relate to alleged, and against whom. The factual alleg Nussbaum, Pushkin s ex-wife. She personal injury and negligence are against 10 is said to have subjected him to an unsafe environment in their (mutual) marital home, to have caused him injury during their joint parti cipation in a household task, and forced him to do physical tasks again st his physicians advice. (See, e.g., P3AC ¶J 1, 12, 13) These allegations fall far short of suggesting the presence of the four essential elements of a neglig ence claim. See generally Stanley Co. v. Hercules Powder Co., 16 N.J. 295, 315, 108 A.2d 616 (1954). And no potential basis for federal jurisdiction appe ars. Pushkin and several defendants, including his ex-wife, are non-dive rse, and these negligence allegations fit within no cited federal statute. See generally 28 U.S.C. § 1331, 1332. To take another example, Count IV cites 31 U.S.C. § 3729, the False Claims Act. There seems to be no allegation that anyone mad e a false statement in order to obtain payment from a federal governme nt agency, which is the subject matter of that Act. One of the incorporated factu al allegations states that defendant GEICO made false claims regarding Plainti ff s PIP coverage and benefits to the New Jersey Department of Bank ing and Insurance. P3AC ¶ 34. Others are similar. From the context, however, it is clear that Pushkin means to say that some defendants said thing s to government agencies that were untrue not that they made false claims for payment from a federal agency. Pushkin alleges under Claim VI ( Cause of action related to Violation! Denial of Civil Rights and Civil Rights related to Servic es, Coverages, Benefits and/or Real and Personal Property ) violations of severa l statutes, 11 specifically, 28 U.S.C. § 1331 (Federal question jurisdiction), 42 (Property rights of citizens), 31 U.S.C. U.S.C. § 1982 § 3729 (False claims), and 31 U.S.C. § fact 3731 (False claims procedure). The incorporation by reference of paragraphs in Count VI gives little help. One, for example, is P3AC ¶ 9: Between November 22, 2006 and January 8, 2010, Defendant Nussbaum willfully and repeatedly denied legitimacy/validity of Plaintiff s injury, level of physical disability, and health/medical care requirements, including the necessity for spinal surgery and hospitalization, regardless of diagnoses/prognoses by professionally trained and licensed medical specialists (i.e., orthopedic surgeon, neurologist, spinal! neurosurgeon). of his This an allegation that Pushkin s ex-wife denied the seriousness s or any medical condition bears no discernible relation to the cited statute the P3AC federal cause of action suggested by the complaint. More generally, the facts in a fails to identify how, if at all, any of these cited statutes relate to way that gives rise to a plausible entitlement to relief. The remaining Counts are similar. To discuss them specifically is or identify fruitless, because they fail to meet elemental standards of pleading falls far specific causes of action in a way that permits of a response. The P3AC int short of Federal Rule of Civil Procedure 8 s requirement that a compla basis indicate clearly the defendants against whom relief is sought and the FED. R. CIV. upon which the relief is sought against the particular defendants. Court cannot P. 8(a)(2). As with the first and second amended complaints, the specifically expect Defendants to defend against claims that are not clearly and 59735, at alleged. Pushkin v. Nussbaum, 12-cv-0324, 2013 U.S. Dist. LEXIS *11_12 (D.N.J. Apr. 25, 2013) (Docket No. 227); Pushkin v. Nussbaum, 12-cv- 12 0324, 2014 U.S. Dist. LEXIS 52349, at *11 (D.N.J. Apr. 15, 2014). Because the P3AC would not survive a motion to dismiss, it would be futile to grant Plaintiffs motion for leave to amend the 2AC and file the P3AC. The question arises whether I should deny the motion to amend with prejudice Le., whether any further amendment would be futile. I have tried to make allowances for Plaintiff s pro se status. In short, it is not the Court s intention to erect pleading barriers to meritorious causes of action, but I do not sense that meritorious claims lie behind these diffuse and confusing allegations. Defendants, although hampered by the inadequate plead ings, have attempted to suggest why the many statutes cited do not or could not apply to them. For the most part, I have not reached those substanti ve contentions, but I here give a flavor. Meritain and RH! cite exhibits that Push kin attached to the 2AC, which demonstrate that they complied with ERISA by sending Plaintiff and his wife the required election forms for COBRA coverage. GEICO surveys the cited statutes and points out the many reasons why they bear no relation to personal injury protection under automobile insuranc e policies, which in any event is almost entirely governed by State law. See gene rally 15 U.S.C. § 1012 (McCarran-Ferguson Act). Prizm discusses the lack of any cognizable tort claim, the failure to identify any relevant contract claim , and the unavailability of a PIP cause of action against a third party administrator . The attorney defendants similarly survey the cited statutes and find no potential cause of action arising from their representation of the plaintiffs ex-wife in divorce 13 y or most state law proceedings. Nussbaum, Pushkin s ex-wife, notes that man gs; that she cannot be claims are preempted or were settled in divorce proceedin not an liable under COBRA or ERISA because she is a beneficiary, ect to the twoadministrator, of a plan; and that any negligence claim is subj that statutes t year statute of limitations. Several of the Defendants poin out 12101 et seq., would such as the Americans with Disabilities Act, 42 U.S.C. § d employers, not even potentially apply. (They are not, for example, covere ns.) Such statutes government entities, or maintainers of public accommodatio no obvious as the Social Security Act and the Medicare Act of 1965 bear relation to the allegations. that a I have focused on the deficiencies in pleading. That is not to say n as a matter of properly pleaded claim would set forth a viable cause of actio tantive defects, law; as set forth above, Defendants have identified severe subs pro se plaintiff in addition to the pleading defects. Nevertheless, I will give this one more chance to remedy those deficiencies IV. CONCLUSION the For the foregoing reasons, the Plaintiff s Motion for Leave to Amend ed Complaint is Second Amended Complaint and file the Proposed Third Amend 285 filings on the DENIED. This action, still at the complaint stage, already has simply what his docket. Plaintiff has been given three opportunities to state st, and what facts causes of action are, what defendants they are asserted again render each relevant defendant liable. 14 This denial is nevertheless without prejudice to the filing of one more properly supported motion to amend the complaint, attaching a proposed pleading. Defendants shall not respond to Plaintifi s motion to amend, if any, unless directed to do so. An appropriate Order accompanies this Opinion. Dated: September 11, 2014 KEVIN MCNULTY United States District Judge 15
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