Case 1:12-cv-04788-PKC Document 2
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Filed 06/19/12 Page 1 of 12
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JANE ROE and JANE DOE, individually and on the behalf of all others similarly situated,
Plaintiffs, vs.
EMPIRE BLUE CROSS BLUE SHIELD and ST. JOSEPH'S MEDICAL CENTER,
Defendants.

Civil Action No.

Plaintiffs Jane Roe ("Roe") and Jane Doe ("Doe") (collectively "Plaintiffs"), by and through their attorneys, Newman Ferrara LLP, as and for their Class Action Complaint, allege upon knowledge, information, and/or belief as follows:
NATURE OF THE ACTION I. This is a class action brought pursuant to Section 502 of the Employment Retirement Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1132, against Empire Blue Cross Blue Shield ("BCBS") and St. Joseph's Medical Center ("St. Joseph's") as sponsors and/or administrators of the Direct POS Plan for Saint Joseph's Medical Center (the "Plan"), for unlawful interference with the rights accorded to Plaintiffs by ERISA, by denying benefits in a discriminatory manner based on their status as partners in a legally recognized same sex marriage. 2. At all relevant times, St. Joseph's was the Plan sponsor responsible for providing health care benefits to the employee Plan participants and beneficiaries, including the Plaintiffs and other similarly situated individuals, who, under the terms of the Plan, were and are entitled to medical benefits.

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3. At all relevant times, BCBS was the Plan administrator responsible for administering the Plan's benefits for Plan participants and beneficiaries, including the Plaintiffs and other similarly situated individuals, who, under the terms of the Plan, were and are entitled to medical benefits.
4. Despite the fact that New York State recognizes same-sex marriage, St. Joseph's and BCBS maintained a provision of the Plan excluding same-sex spouses from eligible dependents of Plan participants. As such, by imposing and/or enforcing this provision, Defendants St. Joseph's and BCBS discriminatorily, imprudently and unlawfully interfered with benefits to which Plaintiffs were entitled in violation of ERISA §§ 409 and 510.
5. Plaintiffs brings this as a class action on behalf of all: (a) all persons who are participants in or beneficiaries of a BCBS insurance plan, and who were or might be denied medical benefits coverage as a result of an employer's policy that excludes coverage for samesex spouses; and (b) all participants and beneficiaries of the Plan who were denied medical benefits coverage as a result of St. Joseph's policy excluding coverage for same-sex spouses.
6. Accordingly, under ERISA § 502(a)(3), Plaintiffs seek equitable relief from Defendants, including, without limitation, injunctive relief and, as available under applicable law, reinstatement of benefits, past, present, and future, as well as attorney's fees and costs.
PARTIES Plaintiffs
7. Plaintiff Roe, at all times relevant hereto, was and is an employee of St. Vincent's Westchester, a division of St. Joseph's, and a resident of Westchester County, New York, and a "participant" in the Plan within the meaning of ERISA § 3(7),29 U.S.C. § 1102(7).
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8. Plaintiff Doe, at all times relevant hereto, was and is the legal spouse of Plaintiff Roe and a resident of Westchester County, New York, and is a proper "beneficiary" of the Plan within the meaning of ERISA § 3(7), 29 U.S.C. § 1102(7). Defendants
9. Defendant St. Joseph's is the Plan "sponsor" within the meaning of ERISA), and has its principal place of business located 127 South Broadway, Yonkers, New York 10701. Through its administration and discretionary management of the Plan, St. Joseph's is a fiduciary of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A).
10. Defendant BCBS is the Plan "administrator" within the meaning of ERISA § 3(16)(A), 29 U.S.C. § 1102(16)(A), and maintains its principal place of business at 633 Third Avenue, New York, New York 10017.
JURISDICTION AND VENUE 11. Subject Matter Jurisdiction. This Court has jurisdiction over this action pursuant to 28 U.S.c. § 1331 and ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1). 12. Personal Jurisdiction. ERISA provides for nation-wide service of process. ERISA § 502(e)(2), 29 U.S.c. § 1132(e)(2). All of the Defendants are either residents of the United States or are subject to service in the United States, and this Court therefore has personal jurisdiction over them. This Court also has personal jurisdiction over them pursuant to Fed. R. Civ. P. 4(k)(1)(A) because they would all be subject to the jurisdiction of a court of general jurisdiction in the State of New York. 13. Venue. Venue is proper in this District pursuant to ERISA § 502(e)(2), 29 U.S.c. § 1132(e)(2), because the Plan was administered in this District, some or all of the conduct
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and/or fiduciary breaches for which relief is sought occurred in this District, and/or some Defendants reside or maintain their primary place of business in this District.
CLASS ACTION ALLEGATIONS 14. Plaintiffs bring this action as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and the following class of persons similarly situated (the "Class"):
All persons who are participants in or beneficiaries of BCBS insurance plans in the State of New York who were or might be denied medicalbenefits coverage as a result of an employer's policy that excludes coverage for same-sex spouses. 15. Plaintiffs also bring this action as a class action pursuant to Rules 23 (a), and (b)(2) of the on behalf of themselves and a subclass of St. Joseph's Plan participants and beneficiaries who have been or will be affected by St. Joseph's policy of excluding coverage for same-sex spouses (the "Subclass"). 16. Plaintiffs meet the prerequisites of Rule 23(a) to bring this action on behalf ofthe Class and Subclass because: a. Numerosity. The members of the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to Plaintiffs at this time, and can only be ascertained through appropriate discovery, Plaintiffs believe that there are thousands of legally married, same-sex couples who reside in New York. Plaintiffs submit that a great number of these individuals have sought but have been denied (or will be denied) medical benefits under a BCBS administered plan where the employer excludes coverage for same-sex spouses. As for the Subclass, Plaintiffs are not presently able to ascertain the number of St. Joseph's
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employees andlor Plan participants negatively affected by St. Joseph's policy but believe numerosity will be satisfied following discovery on this issue.
b. Commonality. Common questions of law and fact exist as to all members of the Class and Subclass and predominate over any questions affecting solely individual members of the Class and Subclass. Among the questions of law and fact common to the Class and Subclass are:
1. Whether Defendants violated ERISA; 11. Whether Defendants discriminated against Plaintiffs in violation of 29
U.S.C. § 1140; iii. Whether the Defense of Marriage Act (DOMA), 28 U.S.c. § l738C, is
unconstitutional; IV. Whether Defendants are liable to Plaintiffs despite DOMA; and v. The extent and calculation of damages caused by Defendants' conduct. c. Typicality. Plaintiffs' claims are typical of the claims of the members of the Class and Subclass because the Plaintiffs and the other members of the Class and Subclass, were or will be denied benefits due to their status as legally recognized samesex spouses as a result of Defendants' wrongful and discriminatory policies, in violation of ERISA as complained of herein. d. Adequacy. Plaintiffs will fairly and adequately protect the interests of the members of the Class and Subclass and have retained counsel competent and experienced in class action, complex, and ERISA litigation. Plaintiffs have no interests antagonistic to or in conflict with those of the Class or Subclass.
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17. Class action status is also warranted under the other subsections of Rule 23(b)(2) because: (a) Defendants have taken actions which apply to the Class universally, thereby making appropriate final injunctive, declaratory, or other appropriate equitable relief with respect to the Class as a whole; and (b) questions oflaw or fact common to members of the Class predominate over any questions affecting only individual members and a class action is superior to the other available methods for the fair and efficient adjudication of this controversy.
STATEMENT OF FACTS Background
18. Plaintiff Roe has been an employee of S1. Joseph's from September 2007 to present, and a participant in the Plan on all pertinent dates.
19. The Plan is an Empire BCBS Direct Group pas Plan administrated by BCBS and sponsored by S1. Joseph's.
20. On or about October 15, 2011, following the passage ofN.Y. DaM. REL. LAW § lO-a(l) (2011), otherwise known as the Marriage Equality Act, which legalized same-sex marriages in New York and mandated full legitimacy be accorded to all same-sex marriages with respect to all applicable laws, Plaintiff Roe married her partner Plaintiff Doe.
21. On or about December 16, 2011, during the open period of Plan enrollment, Plaintiff Roe made a request to S1. Joseph's that her spouse, Plaintiff Doe, be added as a dependent to her medical benefits coverage so that she could receive the benefits that are provided by the Plan as such benefits are regularly provided to spouses under the Plan.
22. On or about December 22, 2011, Plaintiff Roe was notified verbally by Carmela Pisanello of S1. Joseph's Human Resources that her spouse would be denied coverage because the Plan expressly excluded "same-sex" couples as eligible dependents of the Plan's participants.
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Plaintiff Roe requested that the denial be put in writing and, on or about February 8, 2012, she received a letter from Ms. Pisanello confirming the denial of coverage.
23. In accordance with the grievance procedures set forth in the Plan, on April 12, 2012, Plaintiff Roe sent "Levell" grievance letters to both BCBS and St. Joseph's complaining about the denial of coverage and requesting that the determination be reversed. Despite the Plan requirement that BCBS respond within fifteen (15) calendar days, Plaintiffs received no response to their Level 1 grievance.
24. Again, in accordance with the same grievance procedures, on May 23, 2012, Plaintiff Roe sent a "Level 2" grievance letter to both BCBS and St. Joseph's complaining once more about the denial of coverage and requesting reconsideration.
25. On or about May 29, 2012, BCBS responded to the Level 2 grievance letter in writing, informing Plaintiff Roe that the denial of coverage would not be reversed because "under [the Plan], same sex spouse and domestic partner is an EXCLUSION under the benefit." The Law
26. New York State law consummates and recognizes the marriage of same-sex couples as legal and binding and requires that those marriages should be accorded the same rights, benefits and privileges as a heterosexual marriages pursuant to the Marriage Equality Act.
27. Because DOMA uulawfully discriminates against same-sex spouses, it is unconstitutional and therefore should not be used as a basis to deny Plaintiffs their right to medical benefits under the Plan. In the absence of DOMA, ERISA would (and should under the Tenth Amendment) follow the law of New York and thus mandate non-discriminatory coverage.
28. However, despite the law of New York which recognizes same-sex marriage, ERISA currently looks first to federal law in defining its terms. Here, the only federal law that
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speaks to the definition of marriage is DOMA. Unlike the law of New York, DOMA provides that marriage, for the purpose of federal law, exists only between one man and one woman, and defines spouse as an individual of the opposite sex. 1 U.S.C.S. § 7 (1996).
29. In a recent First Circuit opinion, the Court of Appeals found that Section 1 of DOMA, which defines marriage narrowly as between two individuals of the opposite sex, was unconstitutional on the basis that the extreme economic burden placed on gay citizens seeking medical benefits, tax benefits and spousal death benefits outweighed the Congressional purposes of DOMA which violated the Equal Protection Clause. Furthermore, the First Circuit found that DOMA violated the Tenth Amendment because its purposes, such as maintaining the morality and tradition of heterosexual marriage, were not so substantially compelling as to countervail the burdens of choice which DOMA inflicts on states with legalized same-sex marriage on a traditionally state regulated matter. See Common Wealth of Massachusetts v. Us. Dep't of Health and Human Services, 698 F.Supp.2d 234 (2012).
30. Similarly, on June 6, 2012, DOMA was found unconstitutional by Judge Barbara Jones of the Southern District of New York, who, like the First Circuit, determined that the governmental goals set forth by DOMA were illegitimate. Judge Jones adduced that DOMA had barely any significance with respect to three of the four goals proffered by Congress, and the fourth could not hold-up in lieu of DOMA's impact on homosexuals, a systematically oppressed demographic. See Windsor v. Us., 2012 WL 2019716 (S.D.N.Y. 2012).
31. This decision follows on the heels of another decision by a federal appeals judge in California who found that, as applied to a federal employee's denial of benefits to her samesex spouse, DOMA was unconstitutional as it violated of the Equal Protection Clause. The judge in that case declared that discriminatory purposes of DOMA did not outweigh the negative
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effects the statute has on homosexuals as a protected class. See Golinsky v. us. Office of
Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012). 32. Because DOMA is unconstitutional, its application in favor of New York State
law is improper. Defendants' Policy is Unlawful
33. St. Joseph's and BCBS should not be permitted to continue the discriminatory and unconstitutional practice of denying benefits to spouses in same-sex marriages while providing those same benefits for couples of the opposite sex.
34. The denial of benefits by the Plan's administrator and sponsor has resulted in an adverse action to Plaintiffs by interfering with their exercise of rights under the Plan and thus the Plaintiffs have been injured and seek redress from Defendants under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), including, without limitation, injunctive relief, equitable relief and attorney's fees.
35. Defendants were and are fiduciaries of the Plan and responsible for administering and sponsoring the Plan, including having discretionary authority and control with respect to the terms, management and administration of the Plan, pursuant to 29 U.S.C. § 1002(21)(A).
36. The Plan states, as aforementioned, that dependents, who are same-sex spouses of Plan participants, are ineligible to receive benefits. The Defendants, at all relevant dates, have condoned and maintained that provision despite its clearly discriminatory purpose and effect.
37. As fiduciaries of the Plan, Defendants had the responsibility and duty of providing benefits to Plan participants and beneficiaries prudently and for the sole purpose of caring for the interests of those individuals pursuant to 29 U.S.c. § 1104. As Defendants failed to abide by their fiduciary duties by creating and maintaining a discriminatory provision which
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interfered with and denied the attainment of rights accorded to Plaintiffs, they violated ERISA. 38. The Plan's provision, and the failure of Defendants to modify or expel it, directly
caused adverse effects on the interests of Plaintiffs and Class Members by prohibiting their access to medical benefits, which are vitally important to maintaining healthy and productive lives.
CLAIMS FOR RELIEF COUNT I
(Claim for Benefits) 39. Plaintiffs incorporates the allegations contained in the previous paragraphs of this Complaint as if fully set forth herein. 40. Defendants unlawfully and discriminatorily interfered with the attainment of benefits to Plaintiffs in violation of ERISA § 510,29 U.S.C. § 1140 by creating, condoning, and maintaining a discriminatory same-sex spouse exclusion under the Plan. 41. The exclusion was intentional and purposeful as evinced by its specific reference to "same sex spouses" in the terms of the Plan. 42. Because Plaintiffs were denied coverage based on this policy, they are entitled to relief under ERISA § 502(a)(3), 29 U.S.C. 1132(a)(3).
COUNT II (Claim for Breach ofFiduciary Duty) 43. Plaintiffs incorporates the allegations contained in the previous paragraphs of this Complaint as if fully set forth herein. 44. At all relevant times, the Defendants were fiduciaries of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.c. § 1002(21)(A).

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45. Defendants breached ERISA § 404, 29 U.S.C. § 1104 by interfering with the attainment of rights afforded by ERISA, namely the right to medical benefits as per an ERISA covered plan with the intent of discriminating against the same-sex spouses of Plan participants, and those members of the Class and Subclass mentioned herein.
46. Accordingly, Plaintiffs are entitled to appropriate equitable relief under ERISA § 502(a)(3) and/or additional benefits under ERISA § 502(a)(I)(B).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for an Order:
A. Declaring this action to be a proper class action maintainable under Rule 23 of the Federal Rules of Civil Procedure;
B. Declaring that Plaintiffs are entitled to benefits under ERISA; C. Declaring that Defendants, together and individually, breached their fiduciary duties under ERISA to Plaintiff and members of the Class and Subclass; D. Compelling Defendants to provide past and future benefits to participants and beneficiaries so entitled; E. Enjoining Defendants, together and individually, from any further violations of their duties under ERISA; F. Awarding Plaintiff and members of the Class and Subclass their costs and expenses in this litigation, including reasonable attorneys' fees and experts' fees and other costs and disbursements; and
o. Awarding Plaintiff and members of the Class and Subclass such other and further
relief as the Court may deem just and proper.

Class Action Complaint for Violations of ERISA

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DATED:

New York, New York June 19, 2012

NE
By: ---1----"--1--'----Jeffre M. Norton Rand lph M. McLaughlin Debra S. Cohen 1250 Broadway, 27th Floor New York, New York 10001 Tel: 212-619-5400 Fax: 212-619-3090 jnorton@nfllp.com rmclaughlin@nfllp.com dcohen@nfllp.com
Counselfor Plaintiff

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St. Joseph’s sponsors the Direct POS Plan (the “Plan”), a health plan for its employees that is self-insured. The Plan provides benefits for spouses of employees but does not define “spouse” within the Plan. However, the Plan includes an exclusion for same-sex spouses (the “Exclusion”), providing, “Same sex spouses and domestic partners are NOT covered under this plan.” (emphasis in original). St. Joseph’s Mem. in Supp. Ex. B (the Plan) p. 61. During the open enrollment period for the Plan in December 2011, Jane Roe sought to add Jane Doe as a dependent to her medical benefits coverage. On December 22, 2011, the St. Joseph’s Human Resources department verbally informed Jane Roe that the requested coverage for her spouse was denied because the Plan did not cover same-sex spouses. Jane Roe requested the refusal in writing, which she received on February 8, 2012.
Jane Roe sent a Level 1 Grievance letter to both BCBS and St. Joseph’s on April 12, 2012, requesting that the denial of coverage be reversed. She did not receive a response. On May 23, 2012, Jane Roe sent a Level 2 Grievance letter to BCBS and St. Joseph’s. BCBS responded on May 29, 2012, stating that “under [the Plan], same sex spouse and domestic partner is an EXCLUSION under the benefit.” Compl. ¶ 25.
II. Procedural Background Plaintiffs filed the Complaint on June 19, 2012. The case was assigned to the Honorable
Judge Edgardo Ramos. The Court granted Defendants leave to file motions to dismiss on October 2, 2012. On October 18, 2012, Plaintiffs sought leave to file a motion for a preliminary injunction in light of the Second Circuit’s decision in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). The Court decided to hold in abeyance the briefing of Defendants’ motions to dismiss and on November 7, 2012, heard oral argument on the issue of the preliminary injunction motion. The Court reserved decision on whether to permit Plaintiffs to file the motion for a
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preliminary injunction. Judge Ramos did not rule on that issue. The case was reassigned to the undersigned on July 12, 2013. Plaintiffs renewed their
request to file a motion for a preliminary injunction on July 22, 2013 in light of the Supreme Court’s decision in United States v. Windsor, 570 U.S. ---, 133 S. Ct. 2675 (2013). On August 15, 2013, this Court granted Defendants leave to file motions to dismiss and Plaintiffs leave to file a cross-motion for preliminary injunction.
In their Complaint, Plaintiffs allege the class to be: “All persons who are participants in or beneficiaries of BCBS insurance plans in the State of New York who were or might be denied medical benefits coverage as a result of an employer’s policy that excludes coverage for samesex spouses.” Compl. ¶ 14. Plaintiffs allege a sub-class of “St. Joseph’s Plan participants and beneficiaries who have been or will be affected by St. Joseph’s policy of excluding coverage for same-sex spouses.” Id. at ¶ 15.
III. Motion to Dismiss Legal Standard On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the
complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When there are well-pleaded factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at 555). It is not necessary for the complaint to assert “detailed factual allegations,” but must allege “more than labels and conclusions.” Twombly, 550 U.S at 555. The facts in the complaint “must
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be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id.
On a motion to dismiss, the court may consider the documents that are “asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The court may deem a document incorporated by reference where the complaint “refers to” the document. EQT Infrastructure Ltd. v. Smith, 861 F. Supp. 2d 220, 224 n. 2 (S.D.N.Y. 2012). “Specifically in the ERISA context, ‘[b]ecause the Plan is directly referenced in the complaint and is the basis of this action, the Court may consider the Plan in deciding the motion to dismiss.’” Faber v. Metropolitan Life Ins. Co., No. 08-cv-10588, 2009 WL 3415369, at *1 n.1 (S.D.N.Y. Oct. 23, 2009) (quoting Steger v. Delta Airlines, Inc., 382 F. Supp. 2d 382, 385 (E.D.N.Y. 2005)).
IV. Discussion a. ERISA Preemption
Plaintiffs argue that the result of the Supreme Court decision U.S. v. Windsor is that ERISA must follow New York State Law – i.e., the Marriage Equality Act – and mandate nondiscriminatory coverage for same-sex couples because of the resulting absence of a Federal law regarding the status of same-sex marriage. The Marriage Equality Act states, “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.” N.Y. DOM. REL. LAW § 10-a(1) (2011). It further provides,
No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.
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Id. at § 10-a(2). Defendants argue that New York Law is preempted by ERISA. ERISA’s preemption clause states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan . . . . Congress used the words ‘relate to’ in [29 U.S.C. § 1144(a)] in their broad sense.” Shaw v. Delta Airlines, 463 U.S. 85, 97-98, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983). However, courts “must presume that Congress did not intend to pre-empt areas of traditional state regulation” through ERISA. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 (1985). “Issues about marriage and divorce, which may arise under ERISA, are governed by state law and are not subject to the ERISA preemption clause. . . . New York law governs on the question of when parties are lawfully married, which determines the identity of the spouse under both ERISA and the pension plan.” Grabois v. Jones, No. 94 CIV.2070(TPG), 1998 WL 158756, at *4 (S.D.N.Y. Apr. 3, 1998); see also Croskey v. Ford Motor Company-UAW, No. 01 CIV. 1094(MBM), 2002 WL 974827, at *4 (S.D.N.Y. May 6, 2002) (“[The] determination [of the lawful widow entitled to survivor benefits from a pension plan] is to be made in accordance with state law because there is no federal domestic relations law, and marriage and divorce are traditional subjects of state regulation.”); Bond v. Trustees of STA-ILA Pension Fund, 902 F. Supp. 650, 655 (D. Md. 1995) (“[T]he definition and regulation of marriage is a traditional area of state authority.”).
Ultimately, however, whether or not ERISA is preempted for purposes of this action is irrelevant. The question presented by Plaintiffs’ Complaint is not whether ERISA or New York State law applies on the issue of marriage, but whether a private plan violates a provision of ERISA by excluding same sex couples from beneficiary status. As Plaintiffs confirm, ERISA
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governs the Plan and thus clearly applies to this case. As the claims are presented, the issue is not whether the Court should look to New York State Law or ERISA but whether Plaintiffs have adequately alleged that Defendants violated ERISA.
b. Claim 1: Claim for Benefits i. Section 510 Caselaw
Plaintiffs claim that Defendants violated Section 510 of ERISA, entitled “Interference with protected rights.” Plaintiffs seek relief through Section 502(a)(3) of ERISA which allows a plan participant “to enjoin any act or practice which violates any provision of this subchapter” or “to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter[.]” 29 U.S.C. § 1332(a)(3). Section 510 states, in relevant part,
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a p articipant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of in terfering w ith th e attainment o f a ny r ight to w hich s uch p articipant ma y become entitled under the plan . . . . 29 U.S.C. § 1140. “The Supreme Court has described an employer’s discharge of an employee, who had worked for the company for over nine years, four months before his pension would have vested as the ‘prototypical’ type of claim that Congress intended to cover under section 510.” Lessard v. Applied Risk Management, 307 F.3d 1020, 1024 (9th Cir. 2002) (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990))). The Second Circuit has stated, “Section 510 was designed primarily to prevent ‘unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.’” Dister v. Continental Grp., Inc., 859 F.2d 1108, 1111 (2d Cir. 1988) (quoting West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980)). Following that lead, “[c]ourts in this district have therefore ‘held that § 510 only proscribes interference with the employment relationship.’”
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Cioinigel v. Deutsche Bank Ams. Holding Corp., No. 12 Civ. 434(KBF), 2013 WL 120618, at *2 (S.D.N.Y. Jan. 10, 2013) (quoting Keir v. Unumprovident Corp., No. 02 Civ. 8781(DLC), 2010 WL 3566878, at *9 (S.D.N.Y. Sept. 14, 2010)); Tirone v. New York Stock Exch., No. 05 Civ. 8703(WHP), 2006 WL 2773862, at *3 (S.D.N.Y. Sept. 28, 2006) (“plaintiffs must allege that defendant took some type of adverse employment action to interfere with the attainment of their benefit rights under the plan.”); Pelosi v. Schwab Capital Mkts., L.P., 462 F. Supp. 2d 503, 512 (S.D.N.Y. 2006) (Section 510 “is designed to protect the employment relationship that gives rise to an individual’s benefit rights, not to create an action for ‘wrongfully withheld benefits,’ which is covered by [ERISA § 502(a)(1)].”); Maguire v. Level Sights, Inc., No. 03 CV 2294, 2004 WL 1621187, at *2 (S.D.N.Y. Jul. 19, 2004) (“To state a claim under § 510, plaintiffs must allege that defendant took some type of adverse employment action to interfere with the attainment of their benefit rights under the plan.”); DeSimone v. Transprint USA, Inc., No. 94 CIV. 3130 (JFK), 1996 WL 209951, at *3 (S.D.N.Y. Apr. 29, 1996) (citation omitted) (“The focus of § 510 is [ ] the employment relationship; an adverse change in that relationship that is motivated at least in part by the employer’s desire to prevent the employee from attaining the benefits under the benefit plan . . .”). Generally, district courts within the Second Circuit follow the same reasoning. See, e.g., Degrooth v. General Dynamics Corp., 837 F. Supp. 485, 489 (D. Conn. 1993), aff’d, 28 F.3d 103 (2d Cir. 1994) (“To state a claim under section 510, a plaintiff must allege that adverse employment action was taken against him in retaliation for asserting his rights under ERISA or for the purpose of interfering with the attainment of those rights.”); Swanson v. U.A. Local 13 Pension Plan, 779 F. Supp. 690, 701 (W.D.N.Y. 1991), aff’d, 953 F.2d 636 (2d Cir. 1991) (same).
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Many other Circuits similarly have held that an action under Section 510 of ERISA is limited to instances involving adverse employer-employee action. See Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan, 24 F.3d 1491, 1503 (3d Cir. 1994) (“[C]ourts construing ‘discriminate’ [as it is used in Section 510] have concluded . . . that the term should be limited to actions affecting the employer-employee relationship, and we adhere to this construction.”); McGath v. Auto-Body North Shore, Inc., 7 F.3d 665, 668 (7th Cir. 1993) (“[T]he focus of § 510 is not on amendments to the plan itself. Rather . . . ‘[i]t is clear from the text of the statute . . . that § 510 was designed to protect the employment relationship against actions designed to interfere with, or discriminate against, the attainment of a pension right. . . . Simply put, § 510 was designed to protect the employment relationship which gives rise to an individual’s pension rights. . . . This means that a fundamental prerequisite to a § 510 action is an allegation that the employer-employee relationship, and not merely the pension plan, was changed in some discriminatory or wrongful way.’” (quoting Deeming v. American Standard, Inc., 905 F.2d 1124, 1127 (7th Cir. 1990)); West v. Butler, 621 F.2d 240, 245-46 (6th Cir. 1980) (“[W]e conclude that discrimination, to violate s 510, must affect the individual’s employment relationship in some substantial way.”); Owens v. Storehouse, Inc., 984 F.2d 394, 398 (11th Cir. 1993) (“It is insufficient merely to allege discrimination in the apportionment of benefits under the terms of the plan. . . . Accordingly, section 510 relates to discriminatory conduct directed against individuals; it does not forbid discrimination relating to the plan in general.” (citation omitted)); Hines v. Massachusetts Mut. Life Ins. Co., 43 F.3d 207, 210 n. 5 (5th Cir. 1995) (“Two circuits have restricted the scope of § 510 to acts that affect the employer-employee relationship; in other words, plan amendments by themselves cannot be actionable under § 510.”); Iwata v. Intel Corp., 349 F. Supp. 2d 135, 143 (D. Mass. 2004) (“[Plaintiff] has cited no
8

Case 7:12-cv-04788-NSR Document 45 Filed 05/01/14 Page 9 of 16
authority to show that the existence of discriminatory terms within a plan creates liability under section 1140.”).
However, not all Circuits accept this construction of Section 510. See Straus v. Prudential Emp. Sav. Plan, 253 F. Supp. 2d 438, 447 (E.D.N.Y. 2003) (citing the Sixth Circuit in Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997), as holding that “§ 510’s protections must at least be broad enough to incorporate non-employee beneficiaries and former employees” and the First Circuit in Aronson v. Servus Rubber, Div. of Chromalloy, 730 F.2d 12 (1st Cir. 1984), as stating that the “discriminatory modification of a pension or retirement plan that intentionally benefits or injures certain identified employees” (citing id. at 16)); Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1133-34 (7th Cir. 1992) (“the emphasis of a Section 510 action is to prevent persons and entities from taking actions which might cut off or interfere with a participant’s ability to collect present or future benefits . . . . [O]ne of the actions which Section 510 makes unlawful is the interference with a participant’s ability to meet these qualifications in the first instance.”); Vogel v. Independence Federal Sav. Bank, 728 F. Supp. 1210 (D. Md. 1990) (allowing section 510 claim against insurer, not employer, for claims that defendants conspired to deprive plaintiff of his rights under the plan). Although the Second Circuit has addressed such in dicta, see supra Dister, 859 F.2d at 1111, it has not directly ruled on the applicability of Section 510 to plan amendments.
ii. Application “Employers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S. Ct. 1223, 131 L. Ed. 2d 94 (1995). ERISA “does not regulate the substantive content of welfare-benefit plans.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,
9

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732, 105 S. Ct. 2380, 2385, 85 L. Ed. 2d 728 (1985). Further, “ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits.” Shaw, 463 U.S. at 91. Consequently, Courts have found that plans that discriminate against different types of disabilities or diseases does not violate ERISA. See Wilson v. Globe Specialty Prods., Inc., 117 F. Supp. 2d 92, 97–98 (D. Mass. 2000) (plan providing different benefits for mental disabilities as opposed to physical disabilities did not violate ERISA); see also McGann v. H & H Music Co., 946 F.2d 401, 407 (5th Cir. 1991) (“To interpret ‘discrimination’ broadly to include [altering a plan in a way that lowered the limitation for benefits payable for AIDS-related claims from $1,000,000 to $5,000] would clearly conflict with Congress’s intent that employers remain free to create, modify and terminate the terms and conditions of employee benefits plans without governmental interference.”).
Here, the Court is presented with a Plan provided by a private actor that does not define “spouse,” but contains an Exclusion that specifically eliminates same-sex spouses from qualifying for benefits. The question before the Court, then, is whether ERISA prohibits a private employer from excluding from the definition of “spouse” an entire category of people such that the outcome is that same-sex married couples are not entitled to the same benefits under their employer-sponsored plan as other legally married couples. ERISA has long been held to be a regulator of plans, not a dictator of plan terms. See Lockheed v. Spink, 517 U.S. 882, 890 (1996) (“[E]mployers or other plan sponsors are generally free under ERISA, for any reason, at any time, to adopt, modify, or terminate welfare plans.” (quoting Curtiss-Wright Corp, 514 U.S. at 78)). Further, the legislative history provides that although an outright anti-discrimination provision of ERISA was contemplated, it was ultimately not included in the Act because other federal laws already proscribed such discrimination. Id. at 104 (“During floor debates, Senator
10

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Mondale questioned whether the Senate bill should be amended to require nondiscrimination in
ERISA plans. Senator Williams replied that no such amendment was necessary or desirable. He
noted that Title VII already prohibited discrimination in benefit plans, and stated: ‘I believe that
the thrust toward centralized administration of nondiscrimination in employment must be
maintained. And I believe this can be done by the Equal Employment Opportunity Commission
under terms of existing law.’ 119 Cong. Rec. 30409 (1973). Senator Mondale, ‘with the
understanding that nondiscrimination in pension and profit-sharing plans is fully required under
the Equal Employment Opportunity Act,’ id., at 30410, chose not to offer a nondiscrimination
amendment.”).
Moreover, section 510 has consistently been excluded from application to allegedly
discriminatory plan terms, especially by courts in this Circuit.1 The “discrimination” proscribed
by that section was not intended to conflict with the strong policy under ERISA that has long
been held to allow plans to provide benefits under terms as it sees fit.2 An employer enjoys the
1 The language cited by Plaintiff from the Supreme Court case Inter-Modal Rail Emps. Ass’n v. Atchinson, Topeka and Santa Fe Ry. Co., 520 U.S. 510, 515 (1997) (“The right that an employer or plan sponsor may enjoy in some circumstances to unilaterally amend or eliminate its welfare benefit plan does not[] . . . justify a departure from § 510’s plain language”), is dicta that refers to the formal amendment process required under ERISA to amend a plan so that employers may not “amend their plans one participant at a time.” Id. at 516. In fact, the cited language supports the case law discussed supra that considers section 510 as barring employers from taking adverse action in response to an employee’s exercise of a right under a plan. 2 The Supreme Court in Inter-Modal explains the policy behind the flexibility provided to employers to mold welfare plans as such:
The f lexibility an e mployer enjoys t o a mend o r el iminate i ts welfare p lan i s n ot an accident; Congress r ecognized t hat “requir[ing] the ve sting o f t hese a ncillary b enefits would seriously complicate the administration and increase the cost of plans.” S.Rep. No. 93-383, p. 51 ( 1973). Giving employers this flexibility also encourages them to offer more generous benefits at the outset, since they are free to reduce benefits should economic conditions sour. If employers were locked into th e p lans t hey in itially o ffered, “ they would e rr in itially o n t he s ide o f o mission.” Heath v. Varity Corp., 71 F.3d 256, 258 (CA 7 1995).
Inter-Modal, 520 U.S. at 515. Section 510 comes into play by “counterbalance[ing] this flexibility by ensuring that employers do not ‘circumvent the provision of promised benefits.’” Id. (citing Ingersoll-Rand Co., 498 U.S. at 143, 111 S. Ct. at 485; H.R. Rep. No. 93-533, p. 17 (1973)).
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“flexibility . . . to amend or eliminate its welfare plan[,]” Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka and Santa Fe. Ry. Co., 520 U.S. 510, 515 (1997), meaning that a plan may, for example, choose not to provide benefits to spouses at all. Jane Roe suffered no adverse employment action in this case; she remains employed by St. Joseph’s.
Plaintiffs insist that the Supreme Court decision in United States v. Windsor changes the landscape. In Windsor, the Supreme Court held that section 3 of the Defense of Marriage Act (“DOMA”), which defined marriage as being between a man and a woman only, violated the equal protections afforded under the Fifth Amendment.3 Since the Supreme Court’s decision in Windsor, it appears that only one district court has addressed the application of Windsor to ERISA. In that Eastern District of Pennsylvania case, the court held that the provision of spousal benefits to a deceased’s same-sex spouse in a plan that did not define “spouse” was required following the demise of DOMA. Cozen O’Connor P.C. v. Tobits, Civil Action No. 11–0045, 2013 WL 3878688 (E.D. Pa. Jul. 29, 2013). In that case, in the absence of a definition of “spouse” in the plan, and in light of the recognition of the marriage as valid of the state of the couple’s domicile (Illinois), the federal government must interpret ERISA as recognizing that marriage.
The Court in Windsor alluded to the widespread implications of the Federal definition of marriage under DOMA, stating, “The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax
3 “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 2692 (quoting Romer, supra, at 633, 116 S.Ct. 1620). DOMA cannot survive under these principles.” U.S. v. Windsor, 570 U.S. ---, 133 S. Ct. 2675, 2693 (2013).
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refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.” U.S. v. Windsor, 570 U.S. ---, 133 S. Ct. 2675, 2694 (2013). The Court held section 3 of DOMA unconstitutional in part because it “force[d] same-sex couples to live as married for the purpose of state law but unmarried for the purpose of Federal law.” Id. at 2694. “Windsor makes clear that where a state has recognized a marriage as valid, the United States Constitution requires that the federal laws and regulations of this country acknowledge that marriage.” Cozen O’Connor, P.C. v. Tobits, Civil Action No. 11–0045, 2013 WL 3878688, at *4 (E.D. Pa. Jul. 29, 2013). The critical difference between Cozen and the facts here is the Exception clause in St. Joseph’s Plan.
Agencies have issued certain guidance in the wake of Windsor. In a recently released IRS Notice, the IRS stated that in order to meet the requirements of a qualified retirement plan for tax purposes, a plan must be compatible with the Supreme Court’s decision in Windsor. IRS Notice 2014-19 (Apr. 4, 2014). The IRS explained that any plan whose terms are not consistent with Windsor – i.e., plans that exclude same-sex spouses from the definition of spouse – must be amended by December 31, 2014 in order to satisfy the Federal tax rules. Id. The Department of Labor issued a Technical Release adopting a rule that “the term ‘spouse’ will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex.” U.S. Dept. of Labor, Emp. Benefits Sec. Admin., Technical Release No. 2013-04, Guidance to Employee Benefit Plans on the Definition of “Spouse” and “Marriage” under ERISA and the Supreme Court’s Decision in United States v. Windsor, (Sept. 18, 2013), http://www.dol.gov/ebsa/newsroom/tr13-04.html. The clear import of Windsor is a shift in federal policy toward enforcing state laws that recognize same sex marriage. The ultimate result
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is that practical implications may encourage employers to embrace the belief espoused by the Marriage Equality Act “that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other.” Windsor, 133 S. Ct. 2675, 2689. Whatever the practical import of agency regulations on welfare plans, this Court must apply ERISA to the claims made by Plaintiff as the law currently stands. As the Court discussed above, ERISA gives employers broad discretion in writing the terms of welfare benefit plans and Section 510 does not apply to the facts of this case because there has been no adverse employment action.
Plaintiffs do not bring any constitutional violation claim, but argue that by holding the Exclusion to be permissible under ERISA, the Court essentially would be enforcing, and thereby participating, in discriminatory action. This equal protection argument fails. The Equal Protection Clause of the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1, 13 (1948). It is well-settled that “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discriminations,’ . . . in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S. Ct. 1965, 1971, 32 L. Ed. 2d 627 (1972) (citing Reitman v. Mulkey, 387 U.S. 369, 380, 87 S. Ct. 1627, 1634, 18 L. Ed. 2d 830 (1967)). Here, the Court is limited to deciding the two ERISA claims brought by Plaintiffs and does not purport to endorse or condone the Exclusion in the Plan. The question of whether plans that exclude same sex couples from the definition of “spouse” are constitutional is not before the Court and is thus left for another day. The Court does not address whether the Exclusion is lawful under other federal laws and holds only that the Exclusion does not violate Section 510 of ERISA as it is currently promulgated.
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c. Claim 2: Violation of Fiduciary Duties
Plaintiffs argue that BCBS and St. Joseph’s violated their fiduciary duties under ERISA
Section 404(a) by enforcing the Exclusion and refusing to provide benefits to Jane Doe, while
knowing that the provision was unlawful.4 Under the terms of ERISA, a fiduciary is only a
fiduciary “to the extent that he acts in such capacity in relation to a plan.” Pegram v. Herdrich,
530 U.S. 211, 225-26 (2000); 29 U.S.C. § 1002(21)(A).5
“Trustees do not breach their fiduciary duties under ERISA simply by presiding over a
plan which fails in some respect to conform to one of ERISA’s myriad provisions[, but r]ather . .
. , where the trustee fails to discharge one or more of the duties described in 29 U.S.C. § 1104.”
Cement & Concrete Workers Dist. Council Pension Fund v. Ulico Cas. Co., 387 F. Supp. 2d
175, 184 (E.D.N.Y. 2005). “The proposition that a trustee who administers a pension plan
knowing it to be in violation of ERISA acts in violation of his fiduciary duties under ERISA,
4 Section 404(a) provides:
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and--
(A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan;
(B) w ith t he car e, s kill, p rudence, an d d iligence under t he circumstances t hen prevailing t hat a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk o f large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan insofar as such documents and in struments a re c onsistent with th e p rovisions o f th is subchapter a nd s ubchapter I II o f th is chapter. 29 U.S.C. § 1104(a). 5 The definition of a fiduciary under ERISA is one “to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A).
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 CasCea7s:e121-4c-v1-705497,8D8-oNcSuRmenDto8c0u,m0e1n/1t34/9201F5il,e1d40113/71836/1, 5PagPea1geof12of 2

14-1759-cv
MANDATE Roe v. Empire Blue Cross Blue Shield UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 12-cv-4788(NSR)

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of December, two thousand fourteen.

PRESENT:

JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY,
Circuit Judges.

JANE ROE, individually and on the behalf of all others similarly situated, JANE DOE, individually and on the behalf of all others similarly situated,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: J_a_n_u_a_r_y_1_3_, _2_0_1_5_

Plaintiffs-Appellants,

v.

No. 14-1759-cv

EMPIRE BLUE CROSS BLUE SHIELD, ST. JOSEPH’S MEDICAL CENTER,

Defendants-Appellees.

FOR PLAINTIFFS-APPELLANTS:

JEFFREY M. NORTON (Randolph M. McLaughlin, on the brief), Newman Ferrara LLP, New York, NY.

FOR EMPIRE BLUE CROSS BLUE SHIELD: ROBERT A. SCHER (Douglas Heffer, Michael J. Tuteur, on the brief), Foley & Lardner LLP, New York, NY.

MANDATE ISSUED ON 01/13/2015

CasCea7s:e121-4c-v1-705497,8D8-oNcSuRmenDto8c0u,m0e1n/1t34/9201F5il,e1d40113/71836/1, 5PagPea2geof22of 2

FOR ST. JOSEPH’S MEDICAL CENTER:

ARTHUR J. ROBB, Clifton Budd & DeMaria, LLP, New York, NY.

Appeal from a May 2, 2014 judgment of the United States District Court for the Southern District of New York (Nelson S. Román, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs Jane Roe and Jane Doe appeal from the District Court’s May 2, 2014 judgment dismissing their claims for discrimination and breach of fiduciary duty pursuant to Sections 510 and 404, respectively, of the Employment Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1140, 1104, and denying plaintiffs’ motion for a preliminary injunction. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Upon de novo review of the record and relevant law, we conclude that the District Court properly dismissed plaintiffs’ Section 510 claim. Plaintiffs have failed to adequately allege any right to which they are entitled or may become entitled under the plan at issue with respect to which defendants discriminated against them or with which defendants otherwise interfered. See 29 U.S.C. § 1140.
We also conclude that the District Court properly dismissed plaintiffs’ Section 404 claim. Plaintiffs have not adequately alleged that defendants were acting in a fiduciary capacity or that they breached any fiduciary duty under ERISA. See 29 U.S.C. § 1002(21)(A). Accordingly, the District Court also properly denied plaintiffs’ motion for a preliminary injunction.
As the District Court held, this decision does not address whether the plan exclusion is constitutional or otherwise lawful under any other federal or state laws.

CONCLUSION
We have considered all of the arguments raised by plaintiffs on appeal and find them to be without merit. For the reasons stated above, the District Court’s May 2, 2014 judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

2

 
 Case: 7:12-cv-04788-NSR As of: 10/25/2015 07:06 PM EDT 1 of 7
CLOSED,COMPLEX−CSMGMT,ECF
U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:12−cv−04788−NSR

Roe et al v. Empire Blue Cross Blue Shield et al Assigned to: Judge Nelson Stephen Roman Cause: 29:1132 E.R.I.S.A.: Civil Enforcement of Employee Benefits
Plaintiff

Date Filed: 06/19/2012 Date Terminated: 05/02/2014 Jury Demand: Plaintiff Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Jane Roe individually and on the behalf of all others similarly situated

represented by Debra Sue Cohen Newman Ferrara LLP 1250 Broadway 27th Floor New York, NY 10019 (212) 619−5400 Fax: (212) 619−3090 Email: dcohen@nfllp.com ATTORNEY TO BE NOTICED

Jeffrey Michael Norton Newman Ferrara LLP 1250 Broadway New York, NY 10001 (212) 619−5400 Fax: (212) 619−3090 Email: jnorton@nfllp.com ATTORNEY TO BE NOTICED

Randolph M. McLaughlin Newman Ferrara LLP 1250 Broadway New York, NY 10001 (212) 619−5400 Fax: (212) 619−3090 Email: rmclaughlin@nfllp.com ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe individually and on the behalf of all others similarly situated

represented by Debra Sue Cohen (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Michael Norton (See above for address) ATTORNEY TO BE NOTICED

Randolph M. McLaughlin (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Empire Blue Cross Blue Shield

represented by Douglas Scott Heffer Foley &Lardner, LLP 90 Park Avenue New York, NY 10016 (212)−338−3418

Case: 7:12-cv-04788-NSR As of: 10/25/2015 07:06 PM EDT 2 of 7

Fax: (212)−687−2329 Email: dheffer@foley.com ATTORNEY TO BE NOTICED

Michael J. Tuteur Epstein, Becker &Green, P.C.(Boston) 111 Huntington Avenue Boston, MA 02199 617−342−4000 Fax: 617−342−4001 Email: mtuteur@foley.com ATTORNEY TO BE NOTICED

Robert Allen Scher Foley &Lardner, LLP 90 Park Avenue New York, NY 10016 (212) 682−7474 Fax: (212) 687−2329 Email: rscher@foley.com ATTORNEY TO BE NOTICED

Defendant St. Joseph's Medical Center

represented by Arthur J. Robb Clifton Budd &DeMaria, LLP 420 Lexington Avenue New York, NY 10170 212 687−7410 Fax: 212 687−3285 Email: ajrobb@cbdm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/19/2012
06/19/2012
06/19/2012 06/19/2012 06/19/2012 06/19/2012

# Docket Text
1 ORDER: Plaintiffs, having moved this Court for an Order permitting them to file their complaint anonymously and having demonstrated to the Court's satisfaction that a justifiable basis exists for doing so, IT IS HEREBY ORDERED that the Complaint annexed hereto may be filed anonymously. (Signed by Judge George B. Daniels, Part I on 6/19/2012) (mro) (Entered: 06/22/2012)
2 COMPLAINT against Empire Blue Cross Blue Shield, St. Joseph's Medical Center. (Filing Fee $ 350.00, Receipt Number 1041379)Document filed by Jane Roe, Jane Doe.(mro) (Entered: 06/22/2012)
SUMMONS ISSUED as to Empire Blue Cross Blue Shield, St. Joseph's Medical Center. (mro) (Entered: 06/22/2012)
Magistrate Judge Ronald L. Ellis is so designated. (mro) (Entered: 06/22/2012)
Case Designated ECF. (mro) (Entered: 06/22/2012)
3 STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M−10−468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to

Case: 7:12-cv-04788-NSR As of: 10/25/2015 07:06 PM EDT 3 of 7

06/22/2012 06/22/2012 06/25/2012 07/06/2012 07/12/2012
07/30/2012 07/30/2012 07/31/2012 07/31/2012 07/31/2012 07/31/2012 08/15/2012
09/10/2012 09/10/2012

this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (mro) (Entered: 06/22/2012)
4 NOTICE of Related Case. Document filed by Jane Doe, Jane Roe. (Norton, Jeffrey) (Entered: 06/22/2012)
5 NOTICE OF CHANGE OF ADDRESS by Debra Sue Cohen on behalf of Jane Doe, Jane Roe. New Address: Newman Ferrara LLP, 1250 Broadway, 27th Floor, New York, New York, USA 10001, 2126195400. (Cohen, Debra) (Entered: 06/22/2012)
6 ORDER INITIAL PRETRIAL CONFERENCE: that a Initial Conference is set for 7/25/2012 at 11:30 AM in Courtroom 12C, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel. (Signed by Judge P. Kevin Castel on 6/25/2012) (pl) (Entered: 06/25/2012)
7 NOTICE OF APPEARANCE by Arthur J. Robb on behalf of St. Joseph's Medical Center (Robb, Arthur) (Entered: 07/06/2012)
8 ENDORSED LETTER addressed to Judge P. Kevin Castel from Jeffrey M. Norton dated 7/11/2012 re: We respectfully request that the scheduled Conference be adjourned until all parties' attorneys have appeared. ENDORSEMENT: Conference Adjourned From: July 25 To: Sept 18 at 12:30 pm., ( Initial Conference set for 9/18/2012 at 12:30 PM before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 7/11/2012) (lmb) (Entered: 07/12/2012)
9 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − WAIVER re: the Service of Summons for St. Joseph's Medical Center. Document filed by Jane Doe, Jane Roe.(McLaughlin, Randolph) Modified on 7/31/2012 (ka). (Entered: 07/30/2012)
10 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − WAIVER re: the Service of Summons for Empire Blue Cross Blue Shield. Document filed by Jane Doe, Jane Roe.(McLaughlin, Randolph) Modified on 7/31/2012 (ka). (Entered: 07/30/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Randolph M. McLaughlin to RE−FILE Document 9 Waiver. Use the event type Waiver of Service Executed found under the event list Service of Process. (ka) (Entered: 07/31/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Randolph M. McLaughlin to RE−FILE Document 10 Waiver. Use the event type Waiver of Service Executed found under the event list Service of Process. (ka) (Entered: 07/31/2012)
11 WAIVER OF SERVICE RETURNED EXECUTED. St. Joseph's Medical Center waiver sent on 6/20/2012, answer due 8/20/2012. Document filed by Jane Roe; Jane Doe. (McLaughlin, Randolph) (Entered: 07/31/2012)
12 WAIVER OF SERVICE RETURNED EXECUTED. Empire Blue Cross Blue Shield waiver sent on 6/29/2012, answer due 8/28/2012. Document filed by Jane Roe; Jane Doe. (McLaughlin, Randolph) (Entered: 07/31/2012)
13 ENDORSED LETTER addressed to Judge P. Kevin Castel from Arthur J. Robb dated 8/14/2012 re: Counsel request a three−week extension of SJMC's time to respond to the complaint to September 10, 2012. Additionally, Empire Blue Cross Blue Shield (Empire) requests an extension to make its response also due on September 10, 2012. ENDORSEMENT: Application granted. Empire Blue Cross Blue Shield answer due 9/10/2012; St. Joseph's Medical Center answer due 9/10/2012. (Signed by Judge P. Kevin Castel on 8/15/2012) (jfe) (Entered: 08/15/2012)
14 NOTICE OF APPEARANCE by Douglas Scott Heffer on behalf of Empire Blue Cross Blue Shield (Heffer, Douglas) (Entered: 09/10/2012)
15 NOTICE OF APPEARANCE by Robert Allen Scher on behalf of Empire Blue Cross Blue Shield (Scher, Robert) (Entered: 09/10/2012)

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09/10/2012 09/10/2012 09/12/2012 09/12/2012 09/13/2012
10/02/2012
10/19/2012
10/23/2012
11/01/2012 11/07/2012
11/08/2012
07/12/2013 07/22/2013

16 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Wellpoint Inc. for Empire Blue Cross Blue Shield. Document filed by Empire Blue Cross Blue Shield.(Scher, Robert) (Entered: 09/10/2012)
17 NOTICE OF APPEARANCE by Michael J. Tuteur on behalf of Empire Blue Cross Blue Shield (Tuteur, Michael) (Entered: 09/10/2012)
18 NOTICE OF CASE REASSIGNMENT to Judge Edgardo Ramos. Judge P. Kevin Castel is no longer assigned to the case. (pgu) (Entered: 09/12/2012)
Magistrate Judge George A. Yanthis is so redesignated. (pgu) (Entered: 09/12/2012)
19 NOTICE OF COURT CONFERENCE: A pre−motion conference will be held before the Hon. Edgardo Ramos, U.S.D.J. on October 2, 2012 at 9:30 am at the Charles L. Brieant United States Courthouse, 300 Quarropas Street, White Plains, NY 10601, Courtroom 218. Plaintiffs' counsel to submit a letter in response (not to exceed 5 pages) by September 28, 2012. Pre−Motion Conference set for 10/2/2012 at 09:30 AM in Courtroom 218, 300 Quarropas Street, White Plains, NY 10601 before Judge Edgardo Ramos. (lnl) (Entered: 09/14/2012)
Minute Entry for proceedings held before Judge Edgardo Ramos: Pre−Motion Conference held on 10/2/2012.Plaintiffs' counsel and Defendants' counsel present. Each Defendant granted leave to file motion to dismiss with following briefing schedule: moving papers due November 1, 2012; opposition due December 3, 2012; and reply due December 17, 2012. (Motions due by 11/1/2012. Replies due by 12/17/2012. Responses due by 12/3/2012.) (lnl) (Entered: 10/02/2012)
20 ENDORSED LETTER addressed to Judge Edgardo Ramos from Jeffrey Norton dated 10/18/2012 re: Counsel writes to inform the Court about the Second Circuit's decision. ENDORSEMENT: Pre−motion conference to be held on Nov. 1, 2012 at 11:00am. Opposing counsel to state position by letter (not to exceed 3 pages) by Oct. 26, 2012. (Pre−Motion Conference set for 11/1/2012 at 11:00 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 10/19/2012) (mml) (Entered: 10/19/2012)
21 ENDORSED LETTER addressed to Judge Edgardo Ramos from Arthur J. Robb dated 10/22/2012 re: The parties request the Court to hold the motion to dismiss briefing schedule in abeyance pending modification at the November 1, 2012 pre−motion conference on plaintiffs' contemplated motion. ENDORSEMENT: The application is granted. (Signed by Judge Edgardo Ramos on 10/23/2012) (mml) (Entered: 10/24/2012)
22 RESCHEDULING NOTICE:Pre−Motion Conference reset for 11/7/2012 at 09:30 AM in Courtroom 218, 300 Quarropas Street, White Plains, NY 10601 before Judge Edgardo Ramos. (lb) (Entered: 11/01/2012)
Minute Entry for proceedings held before Judge Edgardo Ramos: Pre−Motion Conference held on 11/7/2012. Plaintiffs' counsel and Defendants' counsel present. Angela O'Donnell is Court Reporter. Plaintiffs permitted to submit letter with additional case briefing by November 9, 2012. Defendants to respond by November 16, 2012. The Court will notify the parties of the new briefing schedule after consideration of the additional submission. (Court Reporter Angela O'Donnell) (mml) (Entered: 11/08/2012)
23 ENDORSED LETTER addressed to Judge Edgardo Ramos from Jeffrey M. Norton dated 11/7/2012 re: Counsel requests an extension until November 14, 2012 to file a supplemental letter. Counsel for Defendants consents as long as they are permitted until November 21, 2012 to respond. ENDORSEMENT: The application is granted. (Signed by Judge Edgardo Ramos on 11/8/2012) (mml) (Entered: 11/08/2012)
NOTICE OF CASE REASSIGNMENT to Judge Nelson Stephen Roman. Judge Edgardo Ramos is no longer assigned to the case. (pgu) (Entered: 07/12/2013)
24 ENDORSED LETTER addressed to Judge Edgardo Ramos from Randolph M. McLaughlin dated 7/11/2013 re: Plaintiffs respectfully renew their request for leave to file a preliminary injunction motion. ENDORSEMENT: Pre−motion

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08/15/2013
11/25/2013
01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014

Conference scheduled for Aug. 15, 2013 at 10:30am. SO ORDERED. (Pre−Motion Conference set for 8/15/2013 at 10:30 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 7/22/2013) (mml) (Entered: 07/23/2013)
Minute Entry for proceedings held before Judge Nelson Stephen Roman: Pre−Motion Conference held on 8/15/2013. Plaintiffs' counsel and Defendants' counsel present. Angela O'Donnell is Court Reporter. Each Defendant granted leave to file a motion to dismiss. Plaintiffs are granted leave to file a cross motion for preliminary injunction. The briefing schedule is as follows: Defendants will serve their motion on September 30, 2013; Plaintiffs will serve their opposition to Defendants' motion and their cross motion on October 30, 2013; Defendants will serve their replies and their oppositions to Plaintiffs' cross motion on December 2, 2013; and Plaintiffs will serve their reply on December 23, 2013. Plaintiffs requested and were granted an extension of page limits on opening and opposition Memoranda to 45 pages in length. The parties are directed to file all motion documents on December 23, 2013, and to provide 2 copies of all documents to chambers as the documents are served. (Court Reporter Angela O'Donnell) (mml) (Entered: 08/15/2013)
25 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Arthur J. Robb dated 11/21/2013 re: Counsel writes to request a modification of the briefing schedule concerning defendants' time to oppose plaintiffs' cross−motion for preliminary injunction and reply on their motions to dismiss and plaintiffs' time to reply on their cross−motion. ENDORSEMENT: The application is granted. Briefing schedule is extended as follows: Defendants' opposition/reply papers to be served on Dec. 24, 2013; and Plaintiffs' reply papers to be served on Jan. 24, 2014. All motion documents are to be filed on Jan. 24, 2014. (Motions due by 1/24/2014.) (Signed by Judge Nelson Stephen Roman on 11/25/2013) (mml) (Entered: 11/26/2013)
26 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Dismiss. Document filed by Empire Blue Cross Blue Shield. (Attachments: # 1 Memorandum of Law in Support of Motion to Dismiss)(Scher, Robert) Modified on 1/27/2014 (ldi). (Entered: 01/24/2014)
27 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION to Dismiss Declaration of Robert A Scher in Support of Motion to Dismiss. Document filed by Empire Blue Cross Blue Shield. (Attachments: # 1 Exhibit A)(Scher, Robert) Modified on 1/27/2014 (ldi). (Entered: 01/24/2014)
28 MOTION to Dismiss. Document filed by St. Joseph's Medical Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Robb, Arthur) (Entered: 01/24/2014)
29 MEMORANDUM OF LAW in Support re: 28 MOTION to Dismiss.. Document filed by St. Joseph's Medical Center. (Robb, Arthur) (Entered: 01/24/2014)
30 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION to Dismiss Exhibit B and Exhibit C to Declaration of Robert A. Scher. Document filed by Empire Blue Cross Blue Shield. (Attachments: # 1 Exhibit C)(Scher, Robert) Modified on 1/27/2014 (ldi). (Entered: 01/24/2014)
31 MEMORANDUM OF LAW in Opposition re: 28 MOTION to Dismiss., 26 MOTION to Dismiss. AND IN SUPPORT OF CROSS−MOTION FOR PRELIMINARY INJUNCTION. Document filed by Jane Doe, Jane Roe. (Norton, Jeffrey) (Entered: 01/24/2014)
32 MOTION for Preliminary Injunction. Document filed by Jane Doe, Jane Roe.(Norton, Jeffrey) (Entered: 01/24/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert Allen Scher to RE−FILE Document 26 MOTION to Dismiss. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Memorandum of Law in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 01/27/2014)

Case: 7:12-cv-04788-NSR As of: 10/25/2015 07:06 PM EDT 6 of 7

01/24/2014
01/24/2014 01/26/2014 01/26/2014 01/26/2014 01/27/2014
01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/27/2014 05/01/2014

***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Robert Allen Scher to RE−FILE Document 27 MOTION to Dismiss Declaration of Robert A Scher in Support of Motion to Dismiss. Use the event type Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 01/27/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Robert Allen Scher: Document No. 30 is an Exhibit. This document is NOT filed via ECF. Exhibits are ONLY filed as attachments to a supporting document. (ldi) (Entered: 01/27/2014)
33 AFFIRMATION of Jeffrey M. Norton, Esq. in Opposition re: 28 MOTION to Dismiss., 26 MOTION to Dismiss.. Document filed by Jane Doe, Jane Roe. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Norton, Jeffrey) (Entered: 01/26/2014)
34 DECLARATION of Jane Roe in Support re: 32 MOTION for Preliminary Injunction.. Document filed by Jane Doe, Jane Roe. (Attachments: # 1 Exhibit A)(Norton, Jeffrey) (Entered: 01/26/2014)
35 DECLARATION of Jane Doe in Support re: 32 MOTION for Preliminary Injunction.. Document filed by Jane Doe, Jane Roe. (Norton, Jeffrey) (Entered: 01/26/2014)
36 FILING ERROR − DEFICIENT DOCKET ENTRY − REPLY MEMORANDUM OF LAW in Support re: 26 MOTION to Dismiss. and Opposition to Plaintiffs' Motion for a Preliminary Injunction. Document filed by Empire Blue Cross Blue Shield. (Scher, Robert) Modified on 1/27/2014 (db). (Entered: 01/27/2014)
37 MOTION to Dismiss. Document filed by Empire Blue Cross Blue Shield.(Scher, Robert) (Entered: 01/27/2014)
38 MEMORANDUM OF LAW in Support re: 37 MOTION to Dismiss.. Document filed by Empire Blue Cross Blue Shield. (Scher, Robert) (Entered: 01/27/2014)
39 DECLARATION of Robert A. Scher in Support re: 37 MOTION to Dismiss.. Document filed by Empire Blue Cross Blue Shield. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Scher, Robert) (Entered: 01/27/2014)
40 REPLY MEMORANDUM OF LAW in Support re: 28 MOTION to Dismiss. and opposition to motion for preliminary injunction. Document filed by St. Joseph's Medical Center. (Robb, Arthur) (Entered: 01/27/2014)
41 REPLY AFFIDAVIT of Dean Civitello in Support re: 28 MOTION to Dismiss.. Document filed by St. Joseph's Medical Center. (Robb, Arthur) (Entered: 01/27/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert Allen Scher to RE−FILE Document 36 Reply Memorandum of Law in Support of Motion. ERROR(S): Document linked to filing error. (db) (Entered: 01/27/2014)
42 REPLY MEMORANDUM OF LAW in Support re: 37 MOTION to Dismiss. and Opposition to Plaintiffs' Motion for Preliminary Injunction. Document filed by Empire Blue Cross Blue Shield. (Scher, Robert) (Entered: 01/27/2014)
43 REPLY MEMORANDUM OF LAW in Support re: 32 MOTION for Preliminary Injunction.. Document filed by Jane Doe, Jane Roe. (Norton, Jeffrey) (Entered: 01/27/2014)
44 LETTER addressed to Judge Nelson Stephen Roman from Jeffrey M. Norton, Esq. dated January 27, 2014 re: the parties' January 24, 2014 bundled e−filing. Document filed by Jane Doe, Jane Roe.(Norton, Jeffrey) (Entered: 01/27/2014)
45 OPINION &ORDER re: 28 MOTION to Dismiss filed by St. Joseph's Medical Center, 37 MOTION to Dismiss filed by Empire Blue Cross Blue Shield, 32 MOTION for Preliminary Injunction filed by Jane Roe, Jane Doe. For the foregoing reasons, Defendants' motion to dismiss is GRANTED. The Clerk of the

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05/01/2014 05/01/2014 05/02/2014
05/22/2014
05/23/2014 05/23/2014 01/13/2015
03/06/2015

Court is respectfully requested to terminate the motions, Docket Nos. 28, 32, and 37, and close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 5/1/2014) (mml) (Entered: 05/02/2014)
Transmission to Judgments and Orders Clerk. Transmitted re: 45 Opinion &Order to the Judgments and Orders Clerk. (mml) (Entered: 05/02/2014)
48 INTERNET CITATION NOTE: Material from decision with Internet citation re: 45 Memorandum &Opinion. (fk) (Entered: 06/09/2014)
46 JUDGMENT: That for the reasons stated in the Court's Opinion and Order (Doc. #45), Defendants' Motion to dismiss is granted and the Complaint is dismissed; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 5/2/2014) (mml) (Entered: 05/02/2014)
47 NOTICE OF APPEAL from 46 Clerk's Judgment,. Document filed by Jane Doe, Jane Roe. Filing fee $ 505.00, receipt number 0208−9703546. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Norton, Jeffrey) (Entered: 05/22/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 47 Notice of Appeal. (tp) (Entered: 05/23/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 47 Notice of Appeal filed by Jane Roe, Jane Doe were transmitted to the U.S. Court of Appeals. (tp) (Entered: 05/23/2014)
49 MANDATE of USCA (Certified Copy) as to 47 Notice of Appeal filed by Jane Roe, Jane Doe USCA Case Number 14−1759−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 1/13/2015. (nd) (Entered: 01/13/2015)
50 Costs Taxed as to 49 USCA Mandate, USCA Case Number 14−1759. in the amount of $323.20. on 03/06/2015 in favor of Empire Blue Cross Blue Shield, St. Josephs Medical Center, Defendants−Appellees against Jane Roe, individually and on the behalf of all others similarly situated, Jane Doe, individually and on behalf of all others similarly situated, Plaintiffs−Appellants,. (nd) (Entered: 03/06/2015)