Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al, No. 2:2011cv00806 - Document 566 (E.D. La. 2016)

Court Description: ORDER AND REASONS: ORDERED that 499 Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART as stated herein. FURTHER ORDERED that the parties file an amended Exhibit I to the Fifth Amended Complaint by September 2, 2016, to ref lect the rulings contained in this Order. Defendants have until September 9, 2016, to file a supplemental memorandum. Plaintiffs have until September 16, 2016, to file an opposition to Defendants supplemental memorandum. Signed by Judge Susie Morgan on 8/10/16. (clc)

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Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al Doc. 566 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CEN TER FOR RESTORATIVE BREAST SU RGERY, L.L.C., ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 11-8 0 6 BLU E CROSS BLU E SH IELD OF LOU ISIAN A, ET AL., D e fe n d an ts SECTION : “E” ( 5 ) ORD ER AN D REAS ON S Before the Court is Defendants’ m otion for partial sum m ary judgm ent filed March 14, 20 16. 1 For the reasons below, the m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D The m em bers of Plaintiff Center for Restorative Breast Surgery, L.L.C. (“Center”) are surgeons who perform post-m astectom y breast reconstruction m edical services. 2 Plaintiff St. Charles Surgical Hospital (“Hospital”) is a specialty surgical center where the physicians affiliated with the Center perform the surgeries. 3 Plaintiffs are out-of-network health care providers, with respect to all Defendants, who provided services to patients covered under ERISA plans and other insurance policies issued or adm in istered by Defendants, num erous Blue Cross Blue Shield health insurance carriers. 4 Plaintiffs allege that, prior to perform ing any surgery, Plaintiffs’ staff contacted each patient’s insurer, notified the insurer of the procedure expected to be perform ed, 1 R. Doc. 499. R. Doc. 30 8 at ¶ 83. 3 Id. at ¶ 91. 4 Id. at ¶ 92; R. Doc. 458-1 at 9. Each patient and his or her respective claim is iden tified in Exhibit I to the Fifth Am ended Com plaint. R. Doc. 30 8. 2 1 Dockets.Justia.com requested preauthorization to have the procedure done, and requested disclosure of the am ount of benefits for the procedure and any qualification to such benefits. 5 Plaintiffs allege they received preauthorization from Defendants, through either Defendants’ em ployees or agents. 6 Plaintiffs filed this suit on April 6, 20 10 , in the Civil District Court for the Parish of Orleans, State of Louisiana. 7 Defendant Blue Cross Blue Shield of Louisiana rem oved the case to this Court on April 12, 20 11. 8 Plain tiffs aver that each patient executed an assignm ent of benefits assigning to Plaintiffs benefits owed to the patient by his or her healthcare insurer, along with the authority and right to institute legal action to recover any am ounts due. 9 Plaintiffs allege they perform ed the surgery on each patient, relying on the inform ation provided by Defendants’ em ployees or agents. 10 Plaintiffs m aintain they did not receive the expected paym ent for each claim identified in Exhibit I to the Fifth Am ended Com plaint 11 in accordance with the representations m ade by Defendants. 12 Plaintiffs bring this action in two capacities: (1) on behalf of their patients as assignees of their patients’ ERISA rights, and (2) in their individual capacities to seek recovery under Louisiana state laws for claim s resulting from their direct interactions with Defendants. 13 Plaintiffs filed a Fifth Am ended Com plaint on J anuary 6, 20 15, asserting the following counts 14 : 5 R. Doc. 30 8 at ¶¶ 94– 95. Id. at ¶¶ 94– 10 7. 7 R. Doc. 1-1. 8 R. Doc. 1. 9 R. Doc. 30 8 at ¶¶ 10 4– 0 7. 10 Id. at ¶ 10 7. 11 The parties have provided the Court with a CD containing Exhibit I to the Fifth Am ended Com plaint. 12 R. Doc. 30 8 at ¶¶ 10 7– 0 8 . 13 Id. at ¶ 1. 14 R. Doc. 30 8. 6 2 Count I: Failure to determ ine benefits in accordance with the term s of ERISA plans; Count II: Failure to supply requested inform ation ERISA requires to be produced; Count III: Failure to provide full and fair review under ERISA; Count IV: Breach of fiduciary duties of loyalty, disclosure, and pruden ce under ERISA; Count V: Detrim ental reliance/ breach Louisiana law; Count VI: Breach of contract(s) under Louisiana law; Count VII: Negligent Misrepresentation(s) under Louisiana law; an d of oral contract(s) under Count VIII: Fraud under Louisiana law. On J une 24, 20 15, the Court dism issed Counts II, III, and IV with prejudice. 15 The Court also dism issed Count VIII after Plaintiffs m oved for dism issal with prejudice. 16 On March 14, 20 16, Defendants filed a m otion for partial sum m ary judgm ent raising the following argum ents: 1. Count I: Certain of Plaintiffs’ claim s for ERISA benefits fail as a m atter of law because the assignm ents on which those claim s are based are nonexistent or invalid; 2. Count I: Certain of Plaintiffs’ ERISA benefits claim s fail as a m atter of law because Plaintiffs failed to exhaust their adm inistrative rem edies; and 3. Count VI: Plaintiffs’ state-law cause of action for breach of contract fails as a m atter of law because Plaintiffs cannot establish the necessary elem ents of an oral contract under Louisiana law. 17 15 R. Doc. 371. On Novem ber 30 , 20 15, Plaintiffs sought reconsideration of the order dism issing Counts II, III, and IV. R. Doc. 469. The Court denied Plaintiffs’ m otion for reconsideration on April 11, 20 16. R. Doc. 50 8. 16 R. Doc. 450 . 17 R. Doc. 499. 3 Plaintiffs filed a response in opposition on J une 7, 20 16. 18 Plaintiffs filed a supplem ental m em orandum on J une 23, 20 16. 19 Defendants filed a reply in support of their m otion on J une 28, 20 16, 20 and Plaintiffs filed a surreply on J uly 11, 20 16. 21 STAN D ARD OF LAW Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”22 “An issue is m aterial if its resolution could affect the outcom e of the action.”23 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”24 All reasonable inferen ces are drawn in favor of the non-m oving party. 25 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 26 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”27 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving 18 R. Doc. 531. R. Doc. 536. 20 R. Doc. 540 . 21 R. Doc. 543. 22 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 23 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 24 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 25 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 26 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 27 Int’l Shortstop, Inc. v . Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 19 4 party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 28 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim . 29 “[U]nsubstantiated assertions are not com petent sum m ary- judgm ent evidence. The party opposin g sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports his or her claim . ‘Rule 56 does n ot im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”30 AN ALYSIS I. COUNT I: CERTAIN OF P LAINTIFFS’ CLAIMS FOR ERISA BENEFITS F AIL AS A M ATTER OF LAW BECAUSE THE ASSIGNMENTS ON WHICH THOSE CLAIMS ARE BASED ARE N ONEXISTENT OR I NVALID Under 29 U.S.C. § 1132(a), a civil enforcem ent action m ay be brought only by a plan participant, beneficiary, fiduciary, or the Secretary of Labor. A non-participant health care provider m ay not bring claim s for benefits on its own behalf but must do so derivatively, relying on its patients’ assignm ents of their benefits claim s. 31 The Fifth 28 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 30 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 31 See Aviation W est Charters, Inc. v. United Healthcare Ins. Co., No. 14-338 , 20 14 WL 5814232 (D. Ariz. Nov. 10 , 20 14). 29 5 Circuit has held that “an assignee has derivative standing to enforce claim s under ERISA § 50 2, thus perm itting assignm ents when not precluded by the plan term s.”32 Defendants argue Plaintiffs lack standing to bring a cause of action under ERISA with respect to certain claim s because the assignm ents of benefits for those claim s are non-existent or invalid. 33 A. Claim C686 Defendants argue that certain of Plaintiffs’ claim s for ERISA benefits should be dism issed as a m atter of law because Plaintiffs have not produced the correspon ding assignm ents of benefits. 34 Defendants failed to identify in their m otion the claim s for which Defendants contend Plaintiffs did n ot produce the corresponding assignm ents of benefits. As a result, at the J une 9, 20 16, status conference, the Court ordered Defendants to notify Plaintiffs of the claim s for which Defendants believed no assignm ents of benefits had been provided. 35 Plaintiffs have since represented to the Court, and Defendants agree, that Plaintiffs have located and provided to Defendants copies of all assignm ents identified by Defendants with the exception of the claim C686, identified in Paragraph 31 of Defendants’ statem ent of uncontested facts. 36 Plaintiffs concede they do not have a valid 32 La. Health Serv. & Indem . Co. v. Rapides Healthcare Sy s., 461 F.3d 529, 537 (5th Cir. 20 0 6). “Although courts have long applied the label of ‘statutory standing’ [under ERISA] . . . , the Suprem e Court has cautioned that this label is ‘m isleadin g’ because the court is not deciding whether there is subject m atter jurisdiction but rather whether the plaintiff ‘has a cause of action under the statute.’” Griffin v. Verizon Com m c’ns, Inc., No. 15-13525, 20 16 WL 116598, at *2 (11th Cir. J an . 12, 20 16) (quoting Lexm ark Int’l, Inc. v. Static Control Com ponents, Inc., 134 S.Ct. 1377, 1387– 8 8 & n . 4 (20 14)). 33 R. Doc. 499-1 at 10 – 16. 34 Id. at 10 – 11. 35 See R. Doc. 535 at 3. 36 R. Doc. 536. All references to “C” followed by a num ber refer to a line on the Center tab of Exhibit I of the Fifth Am ended Com plaint. All references to “H” followed by a num ber refer to a line on the Hospital tab of Exhibit I of the Fifth Am en ded Com plaint. 6 assignm ent of benefits with respect to claim C686. 37 Accordingly, the Court grants sum m ary judgm ent with respect to this claim . B. Whether Certain of the Center’s ERISA Benefits Claim s Are Barred by AntiAssignm ent Clauses Defendants argue that certain of the Center’s claim s for ERISA benefits fail as a m atter of law because the corresponding ERISA plans contain anti-assignm ent provisions that render invalid the assignm ents upon which the Center relies. 38 In response, Plaintiffs argue that Defendants are estopped from relying on these anti-assignm ent provisions, or have waived their right to do so, because “Defendants said nothing regarding an antiassignm ent provision,” even though Defendants were aware of the assignm ents when Plaintiffs subm itted their claim s for reim bursem ent. 39 Each of the Center’s claim s identified in Section I of Defendants’ statem ent of uncontested m aterial facts involves an ERISA plan containing an anti-assignm ent provision. 40 “[T]he Fifth Circuit has . . . recognized that anti-assignm ent provisions are generally effective and will operate to render a purported assignm ent invalid.”41 Plaintiffs 37 Id. R. Doc. 499-1 at 11– 12. 39 R. Doc. 531 at 2– 4. Defen dants “fram e their reply in term s of estoppel.” See R. Doc. 540 at 3 n.2. It is im portant to note, however, that, “[a]lthough w aiver and estoppel are som etim es used interchangeably, especially in the law of insurance, there is a subtle but sign ificant legal distinction between the two.” Pitts v. Am erican Sec. Life Ins. Co., 931 F.2d 351, 357 (5th Cir. 1991) (em phasis in original). “W aiver is the voluntary or intentional relinquishm ent of a known right.” Id. (em phasis in original). “In contrast to waiver, . . . estoppel in volves som e elem ent of reliance or prejudice on the part of the insured before an insurer is foreclosed from raisin g a ground for denial of liability that was known at an earlier date.” Id. Nevertheless, this distinction is inconsequential with respect to this Order, as the Court finds Plaintiffs fail to com e forward with com petent sum m ary-judgm ent evidence showing a genuin e issue of m aterial fact with respect to waiver or estoppel. 40 R. Doc. 499-2 at ¶¶ 1– 171. 41 The Sleep Lab at W est Houston v. Tex. Children ’s Hosp., No. 15-0 151, 20 15 WL 350 7894, at *4 (S.D. Tex. J une 2, 20 15) (citin g LeTourneau Lifelike Orthotics & Prosthetics, Inc. v. W al-Mart Stores, Inc., 298 F.3d 348, 352 (5th Cir. 20 0 2)). See also Rapides, 461 F.3d at 537 (“We have held that an assignee has derivative standing to enforce claim s under ERISA § 50 2, thus perm ittin g assignm ents w hen not precluded by the plan term s. We have also held that, absent a statute to the contrary, an anti-assign m ent provision in a plan is perm issible under ERISA.”). 38 7 do not dispute that the ERISA plans governing the claim s identified in Section I contained anti-assignm ent provisions that would be valid an d enforceable absent the Plaintiffs’ waiver and estoppel argum ents. 42 The Fifth Circuit has recognized, in Herm ann Hospital v. MEBA Medical and Benefits Plan, that an insurer m ay be estopped from asserting its right to enforce an antiassignm ent clause “because of its protracted failure to assert the clause when [the purported assignee] requested paym ent pursuant to a clear and unam biguous assignm ent of paym ents for covered benefits.”43 The decision in Herm an II was issued after the district court held a bench trial and the court had all of the evidence regarding estoppel and waiver before it. This case is before the Court on a m otion for sum m ary judgm ent. At trial, Plaintiffs would have the burden of establishing estoppel or waiver. To establish estoppel in an ERISA case, the plaintiff m ust dem onstrate the following: (1) a m aterial m isrepresentation; (2) reasonable and detrim ental reliance upon the representation; an d (3) extraordinary circum stances. 44 To establish waiver, the plaintiff m ust show that the defendants voluntarily or intentionally relinquished a known right. 45 Plaintiffs have not provided an y sum m ary-judgm ent evidence establishing disputed issues of fact with respect to whether Defendants are estopped from enforcing or have waived the right to enforce the anti-assignm ent provisions. 46 In fact, as 42 See R. Doc. 531; R. Doc. 531-3 at 2. Herm ann Hosp. v . M EBA Med. & Benefits Plan (Herm ann II), 959 F.2d 569, 575 (5th Cir. 1992), overruled in part on other grounds by Access Mediquip, L.L.C. v. UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 20 12). 44 Mello v. Sara Lee Corp., 431 F.3d 440 , 444– 45 (5th Cir. 20 0 5). 45 Pitts By & Through Pitts v. Am . Sec. Life Ins. Co., 931 F.2d 351, 357 (5th Cir. 1991). 46 See, e.g., Aviation, 20 14 WL 5814232 (grantin g sum m ary judgm ent for insurer based on an antiassign m ent provision , despite the plaintiff’s argum ent that the insurer waived its right to enforce the antiassign m ent provision, and noting that “Plaintiff has subm itted no evidence of [the insurer’s] alleged actions constituting waiver”); Prem ier Health Ctr. V. UnitedHealth Group, No. 11-425, 20 12 WL 113560 8 (D. N.J . Apr. 4, 20 12) (“[C]ourts have held that an anti-assign m ent clause m ay be waived by a written instrum ent, 43 8 Defendants point out, Dr. Scott K. Sullivan, a “m em ber/ m anager” of both the Center an d the Hospital, with an ownership interest in both entities, 47 testified in his deposition that he was aware since 20 0 3 that Blue Cross does not recognize assignm ents of ben efits, thus underm ining Plaintiffs’ estoppel argum ent. 48 Further, som e courts have held that estoppel m ay be invoked only when the relevant plan provision is am biguous. 49 Plaintiffs do not allege the anti-assignm ent provisions are am biguous. Plaintiffs present no eviden ce from which the Court m ay infer that Defendants waived or are estopped from asserting their right to enforce the applicable anti-assignm ent provisions. It is undisputed that the ERISA plans governing the claim s identified in Section I of Defendants’ statem ent of uncontested m aterial facts contain anti-assignm ent provisions. Plaintiffs have failed to offer any sum m ary-judgm ent eviden ce establishing disputed facts with respect to waiver or estoppel. The Court finds as a m atter of law that the purported assignm ents of those claim s to the Center are invalid. Accordingly, with respect to the claim s identified in Paragraphs 1– 30 an d 32– 171 of Section I of the a course of dealin g, or even passive conduct, i.e., takin g no action to in validate the assign m ent vis-à-vis the assignee.”). Nor did Plaintiffs include allegations in their com plaint regarding waiver or estoppel. R. Doc. 30 8. See Sleep Lab, 20 15 WL 350 7894, at *4– 5 (“Plaintiff’s reliance on [Herm ann II] in support of its argum ent that [the insurer] has waived or is estopped from relying on the Plan’s anti-assign m ent provision is unpersuasive . . . because the com plaint as currently drafted contains no facts about the parties’ course of conduct, which if true, would allow the court to conclude that defendant has in fact waived or is estopped from relying on the Plan’s anti-assignm ent provision.”); Griffin, 20 16 WL 116598, at *4 (“[The purported assignee] has neither alleged nor explain ed how [the plan sponsor] intentionally relin quished its rights under the anti-assignm ent provision .”). 47 R. Doc. 531-2 at ¶¶ 1, 2, 4. 48 R. Doc. 543-5 at 157– 59. 49 See, e.g., Griffin, 20 16 WL 116598, at *4 (“Under ERISA equitable estoppel applies only when []the plaintiff can show that . . . the relevant provisions of the plan at issue are am biguous . . . .” (internal quotation m ark om itted)); Sprague v. Gen . Motors Corp., 133 F.3d 38 8, 40 4 (6th Cir. 1998) (en banc) (“Principles of estoppel . . . cannot be applied to vary the term s of unam biguous plan docum ents; estoppel can only be in voked in the context of am biguous plan provisions. There are at least two reasons for this. First, as we have seen , estoppel requires reasonable or justifiable reliance by the party assertin g the estoppel. That party’s reliance can seldom , if ever, be reasonable or justifiable if it is inconsistent with the clear and unam biguous term s of plan docum ents available to or furnished to the party. Second, to allow estoppel to override the clear term s of plan docum ents would be to en force som ethin g other than the plan docum ents them selves. That would not be consistent with ERISA.” (citations om itted)). 9 statem ent of undisputed m aterial facts, the Center does not have a cause of action under ERISA because the Center is not a plan participant, beneficiary, or fiduciary and does not have valid assignm ents of rights or benefits. 50 Defendants’ m otion for sum m ary judgm ent with respect to these claim s is granted. C. Whether Certain of the Hospital’s ERISA Benefits Claim s Are Barred by AntiAssignm ent Clauses To prevail on its ERISA claim s, the Hospital m ust dem onstrate that it has valid assignm ents and thus m ay bring a cause of action for benefits under ERISA. Defendants argue the Hospital cannot establish that it has valid assignm ents for claim s in Sections II and III (Paragraphs 172– 253) of Defendants’ statem ent of uncontested m aterial facts because the assignm ents the Hospital has are rendered invalid by the anti-assignm ent provisions contained in the applicable plans. 51 Defendants, however, fail to dem onstrate that the anti-assignm ent provisions are valid and enforceable as a m atter of law. Som e states have statutes that require insurance com panies to honor assignm ents of benefits m ade by patients to hospitals. For exam ple, La. R.S. § 40 :20 10 provides that “[n]o insurance com pany . . . which is obligated to reim burse [an] individual . . . for the services rendered by [a] hospital shall pay those benefits to the individual when the item ized statem ent subm itted to such entity clearly indicates that the individual's rights to those benefits have been assigned to the hospital.”52 Section 40 :20 10 thus “requires insurance com panies to honor all assignm ents of benefit claim s m ade by patients to 50 See Aviation, 20 14 WL 5814232, at *3. Doc. 499-1 at 13– 16. 52 LA. R EV. STAT. § 40 :20 10 . 51 R. 10 hospitals.”53 In Louisiana Health Services & Indem nity Co. v. Rapides Healthcare Sy stem , the Fifth Circuit held that Section 40 :20 10 is not preem pted by ERISA. 54 Defendants argue that La. R.S. § 40 :20 10 does not apply to the claim s identified in Sections II and III of Defendants’ statem ent of uncontested m aterial facts because those claim s “relate to ERISA plans that are not governed by Louisiana law.”55 Specifically, Defendants argue the claim s in Section II involve ERISA plans containing choice-of-law provisions that provide that the law of a state other than Louisiana applies. 56 Defendants, however, do n ot identify which state law applies to each plan, nor do Defendants establish whether the applicable state law has a requirem ent that insurance carriers honor assignm ents to hospitals. As a result, Defendants fail to establish as a m atter of law that the anti-assignm ent provisions contained in those plans are valid under the laws applicable to those plans. Defendants argue the claim s in Section III are not governed by ERISA plans with choice-of-law provisions but that, consistent with other courts in this circuit, the Court should apply the law of the state with the m ost significant relationships to the insurance 53 Rapides, 461 F.3d at 530 . Id. at 541. Defendants argue that this Court “should find La. R.S. 40 :20 10 preem pted under ERISA” in light of the Suprem e Court’s recent decision in Gobeille v. Liberty Mutual Insurance Co., 136 S. Ct. 936 (20 16). Gobeille in volved a Verm ont reporting regim e that required “health insurers, includin g ERISA plans, to report detailed inform ation about the adm in istration of benefits in a system atic m ann er.” Id. at 946. The Suprem e Court found that Verm ont’s reporting regim e was preem pted by ERISA because the Verm ont regim e “is a direct regulation of a fundam ental ERISA function” and a “direct regulation of a central m atter of plan adm inistration.” Id. The Court explained that “reportin g is a principal and essential feature of ERISA,” which “dem onstrates that Con gress intended to pre-em pt state reporting laws like Verm ont’s. . . .” Id. ERISA is silent, however, with respect to the assignability of ben efits. See Herm ann Hosp. v. MEBA Med. & Ben efits Plan (Herm ann I), 845 F.2d 1286, 1289 (5th Cir. 1988 ) (“ERISA contains no anti-assign m ent provision with regard to health care benefits of ERISA-governed m edical plans, nor is there any language in the statute which even rem otely suggests that such assign m ents are proscribed or ought in any way to be lim ited.”); see also Rapides, 461 F.3d at 534– 35. The Court does not find that Gobeille “m akes clear that the Fifth Circuit . . . decided Rapides Healthcare Sy stem incorrectly,” as Defendants argue. See R. Doc. 499-1 at 13 n.4. Accordingly, consistent with the Fifth Circuit’s decision in Rapides, this Court finds that La. R.S. § 40 :20 10 is not preem pted by ERISA. 55 R. Doc. 499-1 at 13– 16. 56 Id. at 15. 54 11 contract. 57 A choice-of-law analysis involves a m ixed question of law and fact. 58 Defendants fail to provide sufficient eviden ce to dem onstrate an absence of disputed m aterial facts regarding which state has the m ost significant relationships to each plan. Furtherm ore, Defendants fail to establish as a m atter of fact and law which state law applies to each plan and fail to establish as a m atter of law that the applicable law does not have a requirem en t that insurance carriers honor assignm ents to hospitals. Defendants fail to m eet their burden on sum m ary judgm ent of establishing that there is no genuine issue of m aterial fact or question of law regarding the applicable law and that the anti-assignm ent provision in each plan is valid under the applicable law. 59 Accordingly, Defendants’ m otion for sum m ary judgm ent with respect to the Hospital’s claim s identified in Sections II and III of Defendants’ statem ent of uncontested m aterial facts is denied. II. CERTAIN OF P LAINTIFFS’ ERISA BENEFITS CLAIMS FAIL AS A MATTER OF LAW BECAUSE P LAINTIFFS FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES Defendants argue that Plaintiffs’ ERISA claim s identified in Section IV (Paragraphs 254– 422) of Defendants’ statem ent of uncontested m aterial facts fail as a m atter of law because Plaintiffs failed to exhaust their adm inistrative rem edies. 60 Defendants identify three reasons the claim s in Section IV should be dism issed: (1) no appeal was filed; (2) an appeal was filed but it was untim ely under the term s of the 57 R. Doc. 499-1 at 15– 16 (citing J. Ray McDerm ott & Co. v. Fidelity & Casualty Co., 466 F. Supp. 353, 366 (E.D. La. 1979); In re Gulf Fleet Holdings, Inc., 491 B.R. 747, 764 (Bankr. W.D. La. 20 13)). 58 See, e.g., S.C. of Okaloosa, Inc. v. Brignac, No. 0 6-10 58, 20 0 7 WL 197430 6, at *4 (W.D. La. J un e 27, 20 0 7). 59 The Court reiterates that if the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production on sum m ary judgm ent by either (1) subm ittin g affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 60 R. Doc. 499-1 at 16– 18 . 12 applicable plan; or (3) the appeal filed lacked the required form necessary to allow Plaintiffs to pursue an adm inistrative appeal on behalf of the patient. 61 A claim ant who is denied benefits under an ERISA plan m ust exhaust all adm in istrative rem edies afforded by the plan before instituting litigation for recovery of benefits. 62 A. Claim s for which Appeals Were Untim ely or No Appeal Was Filed A claim ant’s failure to exhaust is proper grounds for dism issal. 63 “An untim ely adm in istrative appeal is sim ilarly fatal to an ERISA claim .”64 There are exceptions to the exhaustion requirem ent, but they are lim ited: “[A] claim ant m ay be excused from the exhaustion requirem en t if he shows either that pursuing an adm inistrative rem edy would be futile or that he has been denied m eaningful access to adm in istrative rem edies.”65 For those claim s for which the adm inistrative rem edies have not been exhausted, Plaintiffs have the burden of establishing an applicable exception to the exhaustion requirem ent. 66 “These exceptions apply, however, only in extraordinary circum stances.”67 Plaintiffs concede the following appeals have not been exhausted, either because no appeal was filed or because the appeal filed was untim ely 68 : 61 R. Doc. 557. Lacy v. Fulbright & Jaw orski, 40 5 F.3d 254, 256 (5th Cir. 20 0 5) (per curiam ). 63 Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993). 64 Thom as v. Metro. Life Ins. Co., No. 15-1733, 20 16 WL 80 634, at *3 (E.D. La. J an . 7, 20 16). 65 McGow an v. N ew Orleans Em ploy ers Int'l Longshorem en’s Ass’n , No. 12-990 , 20 12 WL 48 850 92, at *7 (E.D. La. Oct. 15, 20 12), aff’d, 538 F. App’x 495 (5th Cir. 20 13) (citing Denton v. First N at’l Bank of W aco, 765 F.2d 1295, 130 2 (5th Cir. 1985); Meza v. Gen . Battery Corp., 90 8 F.2d 1262, 1279 (5th Cir.1990 )). See also Long v. Aetna Life Ins. Co., No. 14-40 3, 20 14 WL 40 720 26, at *4 (E.D. La. Aug. 18, 20 14). 66 McGow in v. ManPow er In t’l, Inc., 363 F.3d 556, 559– 60 (5th Cir. 20 0 4); McGow an, 20 12 WL 48850 92, at *7. 67 Long, 20 14 WL 40 720 26, at *5. 68 R. Doc. 531-1. 62 13 Paragrap h N u m be r in D e fe n d an ts ’ State m e n t o f U n co n te s te d Mate rial Facts 69 263 269 C515 271 C614 278 H782 282 H967 286 C1144 287 C1261 291 H116 294 C1334 30 5 H1197 312 C545 313 C548 314 C551 315 H514 316 H517 317 C967 318 H880 319 H1221 320 C598 321 C8 0 7, C8 0 8, C80 9 322 H843 323 C952, C953, C954 324 C10 28, H 915 325 H297, C1235 326 C1268, C1269 327 C1314, C1315, H1128 332 69 Claim N u m be r( s ) C651 C342 R. Doc. 499-2. 14 333 C652 338 H593 348 H10 0 349 C110 350 H1276 351 H10 36 352 H388 353 C978, H889 354 H938 355 C178 356 C179 357 H159 358 H160 359 H247 360 H290 361 H30 8 362 H310 363 C30 2 364 H258 365 C336 366 H30 1 367 H30 3 368 C411 369 C412 370 C413 371 C414 372 H354 373 H355 374 H415 375 C10 25 15 376 C1376 377 H1190 378 C140 4 379 H1215 380 H1216 381 C6, C7, C8 , H7, H8, H9 382 C141, C142, H132 383 H295 384 H296 385 C542, C543, C544, H511 386 C573, C574, C575, C576, H540 387 C630 , C631, C632, H581 388 H80 0 389 H917, H918 390 C1236, H10 71 391 C1237 392 C1287, H110 6 393 C1337, H115 394 C1397 395 C329 396 C330 397 H532 398 C615 399 C616 40 0 H574 40 1 C8 30 40 2 C8 31 16 40 3 C8 32 40 4 H571 40 5 H752 40 6 C889 40 7 C948 40 8 C949 40 9 C950 410 C111 411 C1215 412 C1216 413 C1217 414 H10 53 415 H10 54 416 C535, C536, C537, H50 0 , H50 1, H50 2 417 H50 3 418 H715 419 C1218 8 420 H121 421 H750 422 C10 93, H962, H963 Plaintiffs state that “the futility of exhaustion is clear,”70 but they fail to provide any argum ent or sum m ary-judgm ent evidence in support of their contention that the appeals of these claim s would have been futile. To show futility, Plaintiffs m ust show that the review was conducted with “hostility or bias” against the claim ant. 71 Plaintiffs have not provided any sum m ary-judgm ent evidence to show hostility or bias against the 70 R. Doc. 543 at 3. 363 F.3d at 559– 60 . 71 McGow in, 17 claim ants. Nor did Plaintiffs provide sum m ary-judgm ent evidence that they had been denied m eaningful access to adm inistrative rem edies. Conclusory allegations are insufficient to support an exception to the exhaustion rule based on a denial of m eaningful access. 72 Plaintiffs have fail to m eet their burden of establishing that an exception to the exhaustion requirem ent applies. Accordingly, sum m ary judgm ent with respect to the claim s Plaintiffs concede have not been exhausted is granted and the claim s are dism issed. The parties dispute whether the claim s should be dism issed with or without prejudice. “While failure to exhaust adm in istrative rem edies usually results in a dism issal without prejudice, when exhaustion is no longer possible, dism issal m ay be with prejudice.”73 Am ong the claim s for which Plaintiffs concede the adm inistrative rem edies have not been exhausted, the following claim s in Court Table One are dism issed with prejudice, as the applicable tim e lim it has passed and exhaustion is no longer possible: Co u rt Table On e Paragrap h N u m be r in D e fe n d an ts ’ State m e n t o f U n co n te s te d Mate rial Facts 74 263 Claim N u m be r( s ) 269 C515 271 C614 287 C1261 294 C1334 30 5 H1197 C342 72 Id. at 560 . Daw son Farm s, LLC v. Farm Serv . Agency , 50 4 F.3d 592, 60 7 (5th Cir. 20 0 7). 74 R. Doc. 499-2. 73 18 312 C545 313 C548 315 H514 318 H880 332 C651 333 C652 338 H593 349 C110 353 C978, H889 375 C10 25 382 C141, C142, H132 387 C630 , C631, C632, H581 391 C1237 394 C1397 395 C329 396 C330 398 C615 399 C616 40 7 C948 40 8 C949 40 9 C950 Am ong the claim s for which Plaintiffs concede the adm inistrative rem edies have not been exhausted, the following claim s in Court Table Two are dism issed without prejudice, as either the applicable tim e lim it has not passed or Defendants failed to provide the Court with the inform ation n ecessary to determ ine whether the applicable tim e lim it has passed, and the claim s are rem anded to the applicable Plan Adm inistrator. Plaintiffs m ay elect to file an appeal with the Plan Adm inistrator. The Plan Adm inistrator 19 m ay then determ ine whether the adm inistrative rem edies have been exhausted in a tim ely m anner, subject to review by this Court. Co u rt Table Tw o Paragrap h N u m be r in D e fe n d an ts ’ State m e n t o f U n co n te s te d Mate rial Facts 75 278 282 H967 286 C1144 291 H116 314 C551 316 H517 317 C967 319 H1221 320 C598 321 C8 0 7, C8 0 8, C80 9 322 H843 323 C952, C953, C954 324 C10 28, H 915 325 H297, C1235 326 C1268, C1269 327 C1314, C1315, H1128 348 H10 0 350 H1276 351 H10 36 352 H388 354 H938 355 C178 356 75 Claim N u m be r( s ) C179 H782 R. Doc. 499-2. 20 357 H159 358 H160 359 H247 360 H290 361 H30 8 362 H310 363 C30 2 364 H258 365 C336 366 H30 1 367 H30 3 368 C411 369 C412 370 C413 371 C414 372 H354 373 H355 374 H415 376 C1376 377 H1190 378 C140 4 379 H1215 380 H1216 381 C6, C7, C8 , H7, H8 , H9 383 H295 384 H296 385 C542, C543, C544, H511 386 C573, C574, C575, C576, H540 21 388 H80 0 389 H917, H918 390 C1236, H10 71 392 C1287, H110 6 393 C1337, H115 397 H532 40 0 H574 40 1 C8 30 40 2 C8 31 40 3 C8 32 40 4 H571 40 5 H752 40 6 C889 410 C111 411 C1215 412 C1216 413 C1217 414 H10 53 415 H10 54 416 C535, C536, C537, H50 0 , H50 1, H50 2 417 H50 3 418 H715 419 C1218 8 420 H121 421 H750 422 C10 93, H962, H963 In addition to the claim s for which Plaintiffs concede the adm inistrative rem edies have not been exhausted, Defendants argue they are entitled to sum m ary judgm ent on 22 Claim s C194 in Paragraph 259, C549 in Paragraph 313, and C1398 in Paragraph 394 of Section IV of the statem ent of uncontested material facts because, although an appeal was filed with respect to each claim , the appeal was untim ely under the term s of the applicable plan. 76 Plaintiffs do not dispute the facts set forth in Defendants’ statem ent of undisputed facts with respect to these claim s. 77 The undisputed facts dem onstrate the appeals with respect to these claim s were untim ely. 78 Accordingly, sum m ary judgm ent with respect to Claim s C194, C549, an d C1398 is granted, and these claim s are dism issed with prejudice. Defendants also contend they are entitled to sum m ary judgm ent on Claim C10 24 in Paragraph 346 of Section IV of the undisputed statem ent of m aterial facts because no appeal was filed. 79 Plaintiffs do not dispute the facts set forth in Defendants’ statem ent of undisputed facts with respect to this claim . 80 The undisputed facts dem onstrate that no appeal was filed with respect to Claim C10 24. 81 Accordingly, sum m ary judgm ent on Claim C10 24 is granted. Because Defendants failed to provide the Court with the inform ation necessary to determ ine whether the applicable tim e lim it has passed, the claim is dism issed without prejudice. B. Claim s for which Appeals Lacked the Required Authorization Form Defendants further argue that, with respect to each claim identified in Record Docum ent 557-4, the appeal filed by Plaintiffs lacked the form necessary to allow Plaintiffs to pursue an adm inistrative appeal on behalf of the patient. 82 Plaintiffs have already conceded adm inistrative rem edies have not been exhausted with respect to 76 See R. Doc. 557-3. R. Doc. 531-3. 78 See R. Doc. 499-2 at ¶¶ 259, 313, 394. 79 See R. Doc. 557-2. 80 R. Doc. 531-3. 81 See R. Doc. 499-2 at ¶ 346. 82 See R. Doc. 557 at 4– 9. 77 23 num erous claim s identified by Defendants in Record Docum ent 557-4. 83 This Part addresses only those claim s that have not yet been addressed by the Court in this Order. When Congress enacted ERISA, it intended to m aintain em ployers’ freedom “to create, m odify and term inate the term s and conditions of em ployee benefits plans without governm ental interference.”84 Further, as other courts of appeals have noted, “[t]he award of benefits under any ERISA plan is governed in the first instance by the language of the plan itself.”85 Accordingly, “[d]ism issal of a com plaint is appropriate when the proper procedure has not been followed for filing a claim and adm inistrative rem edies have not been exhausted.”86 The applicable plan for each claim identified in Record Docum ent 557-4 required Plaintiffs to subm it an authorization form with respect to each claim showing the Plaintiffs were authorized to pursue an appeal on behalf of the patient. The Court finds that these provisions are clear and m ust be enforced as written. Because Plaintiffs failed to provide the required authorization form with respect to the claim s identified in Record Docum ent 557-4, sum m ary judgm ent on those claim s is granted. These claim s are dism issed without prejudice 87 and rem anded to the applicable Plan Adm inistrator, as Defendants have failed to provide the Court with the inform ation necessary to determ ine 83 Plaintiffs have already conceded that the adm in istrative rem edies for the claim s in the followin g paragraphs of Defendants’ statem ent of uncontested m aterial facts have not been exhausted: Paragraphs 263, 269, 271, 278, 28 2, 28 6, 287, 291, 294, 30 5, 316, 319, 332, 333, 338, 350 , 352, 354, 368 , 373, 377, 383, 388 , 397, 40 0 – 0 6, 411, 412, and 415. R. Doc. 531-1. The Court has already granted sum m ary judgm ent with respect to the claim s in these paragraphs and dism issed these claim s, som e with prejudice and som e without prejudice. See supra Part II.A. 84 LeTourneau, 298 F.3d at 352. 85 Liberty Life Assur. Co. of Boston v. Kennedy , 358 F.3d 1295, 130 2 (11th Cir. 20 0 4); Lockhart v. United Mine W orkers of Am . 1974 Pension Trust, 5 F.3d 74, 78 (4th Cir. 1993) (citin g Callahan v. Rouge Steel Co., 941 F.2d 456, 460 (6th Cir. 1991)). 86 Long, 20 14 WL 40 720 26, at *3 (citing Medina, 983 F.2d at 33); see also Marcella v. Ochsner Health Sy s., No. 10 -2323, 20 10 WL 4553520 , at *2 (E.D. La. Oct. 28, 20 10 ). 87 This applies only to the claim s not already addressed supra in Part II.A. 24 whether the applicable tim e lim it for pursuing an appeal has passed. With respect to each claim in Record Docum ent 557-4, Plaintiffs m ay elect to file an appeal with the Plan Adm inistrator, providing the required authorization form . The Plan Adm in istrator m ay then determ in e whether the appeal with the required form is tim ely under the applicable plan, subject to review by this Court. III. W HETHER P LAINTIFFS’ STATE -LAW CAUSE OF ACTION FOR BREACH OF CONTRACT F AILS AS A M ATTER OF LAW BECAUSE P LAINTIFFS CANNOT E STABLISH THE N ECESSARY E LEMENTS OF AN ORAL CONTRACT UNDER LOUISIANA LAW To prevail on their state-law cause of action for breach of contract in Count VI of the Fifth Am ended Com plaint, Plaintiffs have the burden of provin g the existence of a contract. 88 Defendants argue they are entitled to sum m ary judgm ent on Plaintiffs’ statelaw claim s for breach of contract because Plaintiffs have no evidence to establish the existen ce of a contract. 89 Defendants first contend Plaintiffs’ cause of action fails as a m atter of law because Sigm a Delta Billing, LLC (“Sigm a Delta”), the com pany that m ade the calls to Defendants allegedly giving rise to the oral contracts between Plaintiffs and Defendants, did not have the authority to enter into contracts on behalf of Plaintiffs. 90 In their opposition, Plaintiffs point to the sworn declaration of Dr. Sullivan. 91 Dr. Sullivan states in his declaration he is a m em ber and m anager of the Center, the Hospital, and Sigm a Delta, with an ownership interest in all three. 92 Dr. Sullivan further states that “Sigm a Delta Billing, LLC is and always has been authorized to enter into binding contracts on behalf of the Center for 88 See LA. CIV. CODE art. 1831. R. Doc. 499-1 at 18– 23. 90 Id. at 19– 23. 91 R. Doc. 531-2. 92 Id. at ¶¶ 1– 4. 89 25 Restorative Breast Surgery, LLC and St. Charles Surgical Hospital, LLC.”93 Dr. Sullivan’s sworn declaration is sufficient to establish a genuine issue of m aterial fact with respect to whether Sigm a Delta was authorized to enter into contracts with Defendants on behalf of Plaintiffs. 94 Accordingly, sum m ary judgm ent on Plaintiff’s state-law cause of action for breach of contract is n ot warranted on this ground. Defendants next argue that, even if Sigm a Delta was authorized to enter into contracts with Defendants on behalf of Plaintiffs, Plaintiffs’ cause of action fails as a m atter of law because Plaintiffs cannot establish the elem ents required to prove the existen ce of an oral contract of which the value exceeds $ 50 0 . 95 It is undisputed that the value of the alleged oral contracts exceed $ 50 0 . Louisiana Civil Code article 18 46 requires that, when the plaintiff alleges the existence of an oral contract of which “the price or value is in excess of five hundred dollars, the contract m ust be proved by at least one witness and other corroborating circum stances.”96 “The ‘other corroborating circum stances’ n eed only be general in nature; indepen dent proof of every detail of the agreem ent is not required.”97 The other corroboration, however, m ust com e from a source other than the plaintiff, and it m ay not result from the plaintiff’s own actions. 98 Whether there are corroborating circum stances sufficient to establish an oral contract is a question of fact. 99 93 Id. at ¶ 12. When assessing whether a m aterial factual dispute exists, the Court considers “all of the evidence in the record but refrains from m akin g credibility determ inations or weighing the evidence.” Delta, 530 F.3d at 398. All reasonable inferen ces are drawn in favor of the non-m ovin g party. Little, 37 F.3d at 10 75. 95 R. Doc. 499-1 at 23. 96 LA. CIV. CODE art. 1846; see also Suire v. Lafay ette City -Par. Consol. Gov’t, 20 0 4-1459 (La. 4/ 12/ 0 5), 90 7 So. 2d 37, 58 . 97 Suire, 90 7 So. 2d at 58. 98 Id.; Kilpatrick v. Kilpatrick, 27,241 (La. App. 2 Cir. 8/ 23/ 95), 660 So. 2d 18 2, 185, w rit denied, 95-2579 (La. 12/ 15/ 95), 664 So. 2d 444. 99 See Lakew ood Estates Hom eow ner’s Ass’n , Inc. v . M arkle, 20 0 2-1864 (La. App. 4 Cir. 4/ 30 / 0 3), 847 So. 2d 633, 638, w rit denied sub nom . Lakew ood Estate Hom eow ner’s Ass’n , Inc. v. Markle, 20 0 3-1511 (La. 9/ 26/ 0 3), 854 So. 2d 362; Deubler Elec. Inc. v . Kn ockers of Louisiana, Inc., 95-372 (La. App. 5 Cir. 11/ 15/ 95), 665 So. 2d 481, 484. 94 26 Defendants argue Plaintiffs lack evidence of “corroborating circum stances” to support the existen ce of the alleged oral contracts. 10 0 Plaintiffs have failed to com e forward with any sum m ary-judgm ent eviden ce of corroborating circum stances from a source other than Plaintiffs. In their opposition, Plaintiffs do not even address Defendants’ argum ent that Plaintiffs lack evidence of corroborating circum stances. 10 1 Defendants re-urge their argum ent in their reply m em orandum , and Plaintiffs provide only the following response: Defendants’ argum ents regarding corroborating circum stances asks this Court to turn a blind eye of the hundreds of letters, appeals, inquiries which resulted from the oral contracts. There is also the uncom fortable fact that the surgery and hospitalizations them selves show that a bargain was m ade and Plaintiffs perform ed their part of that bargain, i.e., they conducted surgery and hospitalized Defendants’ insureds. 10 2 This, however, is in sufficient for Plaintiffs to m eet their burden on sum m ary judgm ent, as Plaintiffs fail to provide any com petent sum m ary-judgm ent evidence to corroborate their contention that there was an oral contract. Reference to the alleged surgeries Plaintiffs perform ed as well as the letters and inquiries Plaintiffs sent to Defendants is insufficient, as the corroborating circum stances “m ay not result from the [plaintiffs’] own actions.”10 3 Plaintiffs do not offer any evidence from another source to establish corroborating circum stances of the alleged contract. 10 4 “[W]ithout the necessary corroborating eviden ce, a claim ant’s testim ony, standing alone, is insufficient to prove the existen ce or 10 0 R. Doc. 499-1 at 23. R. Doc. 531. 10 2 R. Doc. 543. 10 3 Kilpatrick, 660 So. 2d at 185. 10 4 The Court reiterates that “Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.” Ragas, 136 F.3d at 458 (internal quotation m arks om itted). 10 1 See 27 am endm ent of an oral contract.”10 5 Defendants’ m otion for sum m ary judgm ent on Plaintiffs’ state-law cause of action for breach of contract in Count VI is granted. CON CLU SION For the foregoing reasons; IT IS ORD ERED that the m otion for sum m ary judgm ent is GRAN TED IN PART and D EN IED IN PART as set forth below. 10 6 IT IS FU RTH ER ORD ERED that Defendants’ m otion for sum m ary judgm ent with respect to Claim C686 identified in Section I, Paragraph 31 of Defendants’ statem ent of uncontested m aterial facts 10 7 is GRAN TED without objection. This claim is D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Defendants’ m otion for sum m ary judgm ent with respect to the claim s identified in Section I, Paragraphs 1– 30 an d 32– 171 of Defendants’ statem ent of uncontested m aterial facts 10 8 is GRAN TED . These claim s are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Defendants’ m otion for sum m ary judgm ent with respect to the claim s identified in Section II and III, Paragraphs 172– 253 of Defendants’ statem ent of uncontested m aterial facts, 10 9 is D EN IED . IT IS FU RTH ER ORD ERED that Defendants’ m otion for sum m ary judgm ent with respect to the claim s identified in Section IV, Paragraphs 254– 433 of Defendants’ statem ent of uncontested m aterial facts 110 is GRAN TED . Those claim s listed in Court 10 5 Biedenharn v. Culp, 39,68 0 (La. App. 2 Cir. 8/ 26/ 0 5), 911 So. 2d 313, 319, w rit denied, 20 0 5-2459 (La. 5/ 5/ 0 6), 927 So. 2d 30 8. 10 6 R. Doc. 499. 10 7 R. Doc. 499-2 at 16. 10 8 Id. at 6– 77. 10 9 Id. at 77– 114. 110 Id. at 114– 177. 28 Table One are D ISMISSED W ITH PREJU D ICE. Those claim s listed in Court Table Two are D ISMISSED W ITH OU T PREJU D ICE and the claim s are rem anded to the applicable Plan Adm inistrator. IT IS FU RTH ER ORD ERED that Claim s C194 in Paragraph 259, C549 in Paragraph 313, and C1398 in Paragraph 394 of Section IV of the Defendants’ statem ent of uncontested m aterial facts are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Claim C10 24 in Paragraph 346 of Section IV of the Defendants’ statem ent of uncontested m aterial facts is D ISMISSED W ITH OU T PREJU D ICE, and the claim is rem anded to the applicable Plan Adm inistrator. IT IS FU RTH ER ORD ERED that the claim s identified in Record Docum ent 557-4 not already addressed elsewhere in this Order are D ISMISSED W ITH OU T PREJU D ICE, and the claim s are rem anded to the applicable Plan Adm inistrator. IT IS FU RTH ER ORD ERED that Plaintiffs’ state-law cause of action for breach of contract in Count VI of the Fifth Am ended Com plaint is D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that the parties file an am ended Exhibit I to the Fifth Am ended Com plaint by Se p te m be r 2 , 2 0 16 , to reflect the rulings contained in this Order. If the parties cannot agree on the disposition of any claim as a result of this Order, Defendants have until Se p te m be r 9 , 2 0 16 , to file a supplem ental m em orandum identifying each claim Defendants argue is subject to sum m ary judgm ent based on this Order. Defendants m ust provide com petent sum m ary-judgm ent evidence to dem onstrate why Defendants are entitled to sum m ary judgm ent on each disputed claim . Plaintiffs have until Se p te m be r 16 , 2 0 16 , to file an opposition to Defendants’ supplem ental m em orandum . Plaintiffs m ust provide com petent sum m ary-judgm ent evidence to 29 support any contested dates or establish other m aterial facts with respect to each claim identified by Defendants. N e w Orle a n s , Lo u is ian a, th is 10 th d ay o f Au gu s t, 2 0 16 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 30

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