United States District Court

for the

Southern District of Florida

MSP Recovery Claims, Series LLC, 

Plaintiff,

v.

Endurance American Insurance 

Company, Defendant.

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Civil Action No. 20-23219-Civ-Scola

Order on Motion to Dismiss

This matter is before the Court upon the Defendant’s motion to dismiss 

the Plaintiff’s first class amended complaint. For the reasons set forth below, 

the Court grants the Defendant’s motion. (ECF No. 18.) 

1. Background

This purported class action arises under the Medicare Secondary Payer 

(“MSP”) provisions of the Medicare Act, 42 U.S.C. § 1395y, et seq. Plaintiff’s 

complaint against the Defendant, Endurance American Insurance Company, is 

one of numerous similar actions that have been filed by the Plaintiff and other 

related entities in district courts throughout the United States. These cases 

tend to involve similar sets of allegations, that the Plaintiff or one of its 

affiliates obtained an assignment from a Medicare Advantage Organization

(“MAO”), here Avmed, Inc., to try to recover money linked to payments made or 

costs incurred by such MAO for the medical treatment of their enrollees who 

were injured in accidents. 

The MSP was enacted to combat the rising costs of Medicare. The MSP 

reformed the Medicare system such that Medicare and MAOs became 

secondary payers who would not bear the costs of medical procedures that 

were already covered by primary payers, i.e. other private insurance 

companies. Under the MSP, Medicare and MAOs could still make “conditional 

payments” to cover the medical bills of their beneficiaries where a primary 

payer, such as the Defendant, could not be expected to remit prompt payment. 

Where Medicare or an MAO “has made a conditional payment, the primary

payer’s ‘responsibility for such payment’ has been ‘demonstrated,’ as by a 

judgment or settlement agreement” and the primary payer is responsible to 

reimburse Medicare or the MAO within 60 days. See MSP Recovery Claims, 

Series LLC v. Ace Am. Ins. Co., 974 F.3d 1305, 1309 (11th Cir. 2020). When a 

primary payer fails to remit such payment, Medicare can seek double damages 

Case 1:20-cv-23219-RNS Document 33 Entered on FLSD Docket 02/23/2021 Page 1 of 6
from the primary payer under the MSP’s right of action for the government. Id. 

Assignees of MAOs, likewise, can seek double damages under the MSP’s private 

right of action. Id. 

Here, the Plaintiff alleges that the Defendant, as a primary payer, has 

“systematically and uniformly failed to honor its primary payer obligations” 

under the MSP by failing to pay or reimburse Avmed Inc., a Medicare MAO, for 

medical expenses “resulting from injuries sustained in automobile and other 

accidents . . . that should have been paid by Defendant but, instead, were paid 

by Medicare and/or MAOs.” (ECF No. 17, at ¶¶ 1-2.) The Plaintiff states it 

utilizes a “proprietary system” that matches health care claims data from its 

assignors like Avmed, Inc. to data from the Centers for Medicare & Medicaid 

Services (“CMS”), police crash and incident reports, and data from primary 

payers, to identify instances where a primary payer failed to honor their 

obligations under the MSP. (ECF No. 18, at ¶ 9.) The Plaintiff claims to have 

used its proprietary system to identify “multiple instances in which [Avmed, 

Inc.] made conditional payments for accident-related medical expenses which 

should have been paid and/or reimbursed by Defendant.” (ECF No. 17, at ¶ 

32.)

The Plaintiff provides a single exemplar in its complaint of the 

Defendant’s alleged failure to honor its obligations under the MSP, which the 

Plaintiff states illustrates the “Defendant’s systematic and uniform failure to 

fulfill its statutory duty.” (ECF No. 17, at ¶ 44.) The Plaintiff states that “[o]n 

December 3, 2014, A.A. was enrolled in a Medicare Advantage Plan issued and 

administered by Avmed, Inc. . . . a MAO.” (ECF No. 17, at ¶ 45.) A.A. was 

injured in an accident, and the alleged tortfeasor was insured by Defendant 

under a liability insurance policy. (ECF No. 17, at ¶ 46.) A.A. required medical 

services as a result of the accident, with A.A.’s medical providers having 

subsequently issued bills for $7,032.56 in accident-related medical expenses to 

Avmed, Inc., A.A.’s MAO. (ECF No. 17, at ¶¶ 47-49.) Avmed, Inc. paid 

$4,178.43 for A.A.’s accident related expenses, and following A.A.’s claim 

against the Defendant’s insured, the Defendant indemnified its insured 

pursuant to an alleged settlement with A.A. As a result of this alleged

settlement, the Plaintiff states that the Defendant became a primary payer 

subject to liability for A.A.’s accident-related expenses. (ECF No. 17, at ¶¶ 50-

51.) The Plaintiff further claims that Defendant reported to CMS it was the 

primary payer for A.A., but failed to make payment as is required by the MSP. 

(ECF No. 17, at ¶¶ 52-53.) 

Case 1:20-cv-23219-RNS Document 33 Entered on FLSD Docket 02/23/2021 Page 2 of 6
2. Legal Standard

A challenge to a plaintiff’s standing to bring a lawsuit is analyzed under 

Federal Rule 12(b)(1). MSP Recovery Claims, Series LLC v. Amerisure Ins. Co., 

No. 20-24077-Civ, 2021 WL 358670, at *1 (S.D. Fla. Feb. 1, 2021) (Altonga, J.). 

As standing is jurisdictional, it has the same effect as a dismissal for lack of 

subject matter jurisdiction pursuant to Federal Rule 12(b)(1). Id. (discussing 

Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 

1244, 1251 (11th Cir. 2008)). A motion to dismiss pursuant to Rule 12(b)(1) 

may be based on either a facial or factual attack to the complaint. Id. A facial 

attack asks whether the plaintiff has alleged a sufficient basis for subject 

matter jurisdiction whereas a factual attack requires the Court to consider 

matters outside the pleadings such as testimony and affidavits. Id. 

In order to prove standing, a plaintiff must allege he has suffered (1) an 

injury in fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable judicial decision. 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish injury in fact, 

a plaintiff must show that he suffered an invasion of a legally protected interest 

that is concrete and particularized and actual and imminent, not conjectural or 

hypothetical. Id. at 1548. For an injury to be particularized, it must impact the 

plaintiff in a personal and individual way. Id. For the injury to be concrete, it 

must be real and not abstract. Id. at 1548-49. 

3. Analysis

The assignee of a claim has standing to assert an injury in fact suffered 

by the assignor. MSP Recovery Claims, Series LLC v. QBE Holdings, Inc., 965 

F.3d 1210, 1217 (11th Cir. 2020). Under the MSP, an assignee has standing to 

sue if “(1) it’s ultimate assignor suffered an injury-in-fact, and (2) the assignor’s 

claim arising from that injury was validly assigned.” Id. (cleaned up). 

The Defendant first alleges that the Plaintiff lacks standing as the alleged 

assignment from Avmed Inc. to the Plaintiff was in fact to a different entity 

called Series 17-03-615 and not to the Plaintiff itself. (ECF No. 18, at 10.) The 

Court agrees with the Plaintiff that, at this stage of the litigation, this argument 

is unavailing. In the Plaintiff’s complaint, the Plaintiff states that pursuant to a 

limited liability agreement, the Plaintiff “maintains the legal right to sue on 

behalf of each of its designated series.” (ECF No. 17, at ¶ 37.) The Plaintiff did 

not provide its limited liability agreement as an attachment to its complaint. 

Nonetheless, at the pleading stage, the Court must “accept as true [the 

Plaintiff’s] allegation that it has the right to bring claims” assigned to Series 17-

Case 1:20-cv-23219-RNS Document 33 Entered on FLSD Docket 02/23/2021 Page 3 of 6
03-615. MSP Recovery Claims, Series LLC v. ACE Am. Ins. Co., 974 F.3d 1305, 

1320 (11th Cir. 2020).

The Defendant next argues that the Plaintiff’s complaint does not make 

clear if the exemplar claim involving A.A. was actually assigned to the Plaintiff, 

because the purported assignment is limited to a specific set of claims. (ECF 

No. 18, at 10.) Specifically, the Defendant argues Avmed, Inc. “assigned only 

those claims ‘with respect to health care services provided to any of Assignor’s 

members or enrollees under CMS Contract ID Number H1016’” with exclusions 

for Avmed Inc.’s right to recover against its network healthcare providers and 

current and former members. (ECF No. 18, at 10-11.) The Defendant states 

that the complaint does not allege that the claims brought by the Plaintiff were 

those claims under Contract ID Number H1016 or that they fall outside

assignment agreement’s exclusions. 

The Plaintiff attached the assignment agreement between Series 17-03-

615 and Avmed Inc. to its complaint. (ECF No. 17-4.) In the agreement, Avmed, 

Inc. acknowledges it is an MAO with Contract ID Number H1016. By way of the 

agreement, Avmed, Inc. assigned “all right, title, interest in and ownership of” 

assigned claims, as defined in the agreement, to Series 17-03-615. The 

assigned claims include: (1) all claims existing as of the date of the agreement; 

(2) all causes of action relating to payments for health care services provided to 

Avmed, Inc.’s members and enrollees; and (3) all causes of action against 

primary payers, among others, that may be liable to Avmed, Inc. Assigned 

claims do not include Avmed’s right to recover against its network healthcare 

providers and current and former members, and claims belonging to Avmed, 

Inc. relating to GlaxoSmithKline’s manufacturing facility in Cidra, Puerto Rico. 

The Plaintiff also provided a “Claims Purchase Agreement & Assignment”

between Avmed, Inc. and Series 17-03-615 which confirms the same scope of 

assigned claims between Avmed, Inc. and Series 17-03-615. 

As the Plaintiff points out, the agreements it attached to its complaint 

purport to assign all rights in claims Avmed, Inc. may have against, among 

others, insurance carriers as a result of such insurance carrier’s “failure to pay 

for healthcare services provided to any of [Avmed, Inc.’s] members or enrollees 

under CMS Contract ID Number H1016.” (ECF No. 17-4.) While the Plaintiff 

states “[t]he individual claim set forth herein” involving A.A. “has been assigned 

to Plaintiff” and that such claim is “not subject to any carveouts, exclusions, or 

other limitations” the Court nonetheless notes that these are legal conclusions 

of contract interpretation, and the interpretation of contracts is a question of 

law for the courts; therefore the Court need not accept the Plaintiff’s assertions 

as true. Reesey v. Fed. Emergency Mgmt. Agency, No. 13-60488-Civ, 2013 WL 

12086662, at *2 (S.D. Fla. July 9, 2013) (Scola, J.); see also Ashcroft v. Iqbal, 

Case 1:20-cv-23219-RNS Document 33 Entered on FLSD Docket 02/23/2021 Page 4 of 6
556 U.S. 662, 678 (2009) (“the tenet that a court must accept all of the 

allegations contained in a complaint is inapplicable to legal conclusions.”). 

Upon review of the complaint and its exhibits, the Court finds that the 

Plaintiff has not properly alleged it has been assigned the right to sue based on 

A.A.’s claim. While the complaint broadly alleges that Avmed, Inc. assigned 

certain rights under the assignment agreement and that A.A.’s claim is not 

subject to any carveouts or exclusions, the Plaintiff has provided no factual 

assertions to the Court to show that A.A.’s claim was part of the assignment

between Avmed, Inc. and the Plaintiff. For instance, while the assignment 

agreement indicates that Avmed, Inc. is a duly authorized MAO with CMS 

Contract ID Number H1016, the Plaintiff does not allege that all of Avmed, 

Inc.’s enrollees are enrolled under CMS Contract ID Number H1016 or that 

Avmed, Inc. operates under only one CMS Contract ID Number. Put another 

way, without being able to conclude that Avmed, Inc. did not retain some 

claims under a separate CMS Contract ID Number, which may include A.A.’s 

claim, the Court cannot determine whether A.A.’s claim was in fact assigned to 

the Plaintiff. Moreover, the Plaintiff has alleged that A.A.’s claim is not subject 

to any carveouts or exclusions, but the Plaintiff similarly offers no factual

assertions to indicate that A.A.’s claim is not subject to the exclusions in the 

assignment agreement. In response to these potential deficiencies, the 

Plaintiff’s briefing simply points the Court back to its complaint, which 

provides only legal conclusions. (ECF No. 24, at 17.)

As the Plaintiff’s legal conclusions are unsupported by factual 

allegations, and the Court cannot determine if A.A.’s claim was actually 

assigned to the Plaintiff, the Court must dismiss the Plaintiff’s claim for lack of 

standing. See MSP Recovery Claims, Series, LLC v. New York Cent. Mut. Fire Ins. 

Co., 6:19-cv-00211, 2019 WL 4222654, at *5 (N.D.N.Y. Sept. 5, 2019) (“There is 

nothing in the record to show whether the R.L. claim is one of the [assigned 

claims] . . . . That ambiguity is fatal to Plaintiffs’ claim that they have standing, 

and the case must be dismissed for lack of jurisdiction.”).

4. Conclusion

The Court therefore grants the Defendant’s motion to dismiss the 

Plaintiff’s first amended class complaint as the Plaintiff has failed to allege it 

has standing. (ECF No. 18.) Accordingly, the Court dismisses the complaint 

without prejudice The Court denies any pending motions, if any, as moot. 

The Clerk is directed to close this case. 

Furthermore, the Court denies the Plaintiffs’ request for leave to amend, 

inserted, as an afterthought, at the end of their opposition to the Defendant’s 

motion: the request is both procedurally defective and lacking in substantive 

Case 1:20-cv-23219-RNS Document 33 Entered on FLSD Docket 02/23/2021 Page 5 of 6
support. See Newton v. Duke Energy Florida, LLC, 895 F.3d 1270, 1277 (11th 

Cir. 2018) (“[W]here a request for leave to file an amended complaint simply is 

imbedded within an opposition memorandum, the issue has not been raised 

properly.”); Avena v. Imperial Salon & Spa, Inc., 740 Fed. App’x 679, 683 (11th 

Cir. 2018) (“[W]e’ve rejected the idea that a party can await a ruling on a 

motion to dismiss before filing a motion for leave to amend.”) (noting also that 

“a motion for leave to amend should either set forth the substance of the 

proposed amendment or attach a copy of the proposed amendment”) (cleaned 

up).

Done and ordered, in Miami, Florida, on February 22, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

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