### [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13

- 13849

Non

- Argument Calendar

________________________

D.C. Docket No. 6:12

- cv

- 00100

- ACC

- DAB

MEDICOMP, INC.,

a foreign profit corporation,

Plaintiff

- Appell ant

,

versus

UNITED HEALTHCARE INSURANCE CO.,

a foreign corporation,

UNITED HEALTHCARE OF NEW YORK,

a foreign profit corporation,

UNITED HEALTHCARE SERVICE, LLC,

a foreign profit corporation,

UNITED HEALTHCARE SERVICES, INC.,

a foreign profit corporation,

Defendants

- Appell ees

.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 1, 2014) Case: 13-13849 Date Filed: 04/01/2014 Page: 1 of 112 

### Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:

The summary judgment entered in favor of the appellees is affirmed for the

reasons set forth in the Order of the district court

, dated July 22, 2013.

AFFIRMED. Case: 13-13849 Date Filed: 04/01/2014 Page: 2 of 11

### U NITED 

### S TATES 

### D ISTRICT 

### C OURT



### M IDDLE 

### D I STRICT 

### O F 

### F LOR I DA



### O RLANDO 

### D I V ISION

MEDICOMP, INC.,

Plaintiff,

v. Case No: 6:12

- cv

- 100

- Orl

- 22DAB

UNIT E DHEA L THCARE IN S URANCE

COMPANY, UN I TED HEALT H CARE OF

NEW YORK, UNIT E D HEA LTH CARE

SERV I CE, LLC, UNI T ED HEA L THCARE

SERV I CE S , INC.,

Defendants.

ORDER

This cause c o m es be f ore the Court o n the M o tion of the Defendants, various entities of

United He a lthc a re I n s u rance Company (coll ec tively, “ D efendants”), for Judgment on the

Pleadings, or, alternatively, for Summary Judg m ent (Doc. No. 73). Plaintiff M e dico mp, In c

.,

(“Plaintiff”) filed a Memorandum i n Oppositi o n (Doc. No. 77), to w h ich Defendants re p lied

(Doc. No. 80). This is the third time the Court has been asked to address the sufficiency of

Plainti ff ’s Co mplaint, ( s ee Doc. Nos. 42, 53), but it is the C ourt’s first opportunity to consider

the m erits o f Plaintiff’s clai m

. The Court w i ll grant summary judg m e n t because Plaintiff has

f

ailed to su b m it any evidence to m eet its s tat u t ory burden of establish i ng its standing to sue.

I. BACKGROUND

For purposes of the Motion for judg m ent on t h e pleadin g s, the Court continues to accept

as true the f acts as a lle g ed in Plai n ti ff ’s Amended Co mplaint, as discuss e d in this C o urt’s p ri o r

Order (Doc. No. 42). P laintiff originally brou g ht five clai m s, but only one re m ains viable:

Case: 13-13849 Date Filed: 04/01/2014 Page: 3 of 11- 2

- Defendants’ alleged failure to rei m burse Plainti f f for its wireless m onitoring device in violation

of the federal E mployee Retire m ent Inco m e Security Act (ERISA). See 29 U.S.C. § 1132(a). In

the dis m issal Order, the Court assu m ed, based on the li b er a l pleading s t andard and Defendant’s

failure to raise the issue, that “Plaintiff h a [d] derivative standing to sue under ERISA’s civil

enforce m ent provision, 29 U.S.C. § 1132(a) (2006), as an apparent third

- party assignee of

ERISA plan beneficiaries (here, p r esu m ably the patie n ts who recei v ed the W irele s s Device),”

and cited Cagle v. Bruner , 112 F.3d 1510, 1515 (11th Cir. 1997) (per curia m ), for support. (Doc.

N o. 42 at 3.) Defendants now assert that the Complaint f ails to allege t h at Pl a inti f f had any such

assign m ents, and they seek judg m ent on the pleadings as a re m edy.

Alternatively, Defend a nts argue that they are entitled to sum m ary judg m ent because

Plaintiff has failed to produce evidence of any valid assign m e n ts of benefits. The parties

conducted discovery on this and o t her issues for approxi m ately six m onths, the discovery period

has ended, and the deadline for filing disposi t ive m otions has passed. Defenda nts filed the

deposition of one of Plaintiff’s executives, Dr. Daniel Balda, in support of their Motion for

Sum m ary Judg m ent; in response, Plai n tiff sub m itt e d numerous examples of identical, redacted

fo r m s, purportedly signed by benef i ciaries of Defendants’ plans, a u thorizing Plaintiff to appeal

Defendants’ denial of benefits for the wireless m o nitoring device at issue in this litigation.

II. LEGAL STANDARDS

A. Judgment on the Pleadings

Rule 12(c) per m its a motion for judg m ent on the pleadin g s “[a ]fter t h e plea d ings are

closed[,] but early enough not to delay trial.” Fed. R. Civ. P. 12(c). “Judg m ent on the pleadings

is appropriate when there are no m aterial facts in dispute, and judg m e nt m ay be rendered by

considering the substance of the pleadings and any judicially noticed facts.” Hawthorne v. Mac

Case: 13-13849 Date Filed: 04/01/2014 Page: 4 of 11- 3

- Adjustment, Inc

. , 140 F.3d 1367, 1370 (11th Cir. 1998). As with a m otion to dis m iss, the Court

accepts all of the alle g ations in t h e co m plaint as true a n d construes them in the light m ost

favorable to the non m o ving party. In re Northlake Foods, Inc

. , 715 F.3d 1251, 1255 (11th Cir.

2013) (per curia m ).

B. Summary Judgment

Sum m ary judg m ent is appropriate when the moving party de m onstrat e s “that there is no

genuine dispute as to any m aterial fact and the m ovant is entitled to judg m ent as a m atter of

law.” Fed. R. Civ. P. 56(a). The movant m ust satisfy this initial burden by “identifying those

portions of the pleadings, depositions, answe r s to interrogatories, and ad m i ssions on file,

together with the affidavits, if any, which it believes de m onstra t e the absence of a genuine issue

of m aterial fact.” Norf o l k S. Ry. v. Groves

, 586 F.3d 1273, 1277 (11th Cir. 2009) (quoting

Celotex Co r p. v. Catrett , 477 U.S. 317, 323 (1986)). However, t h e m ovant is entitled to sum m ary

judg m ent where “the non m oving party has failed to m ake a sufficient showing on an essential

ele m ent of her ca s e with respect to w hich she has the burden of proof.” Celot e x

, 477 U.S. at 323.

When it co nf licts, the c o urt p resu m es the non m oving party’s evidence to be true and will d raw

all r easona bl e in f erenc e s in its f avor. Shotz v. City of Plantatio n

, 344 F.3d 1161, 1164 (11th Cir.

2003). In Anderson v. Liberty Lobb y

, the Supre m e Court explained that the standard for

summary judg m ent is “whether reasonable jurors could find by a preponderance of the evidence

that the plaintiff is entitled to a verdict.” 477 U.S. 242, 252 (1986). However, “[c]redibility

deter m inati o ns, the wei g hing of the evidence, a n d the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Id. at 255.

III. ANALYSIS

A. ERISA Standing

Case: 13-13849 Date Filed: 04/01/2014 Page: 5 of 11- 4

- The ci v i l e n force m ent provision of ERISA per m its a pa r t icipant or beneficiary to bring

suit “to recover benefits due to h i m under the t e r m s of his plan.” 29 U.S.C. § 1132(a)(1). The

standing is s ue present e d in this c a se is not of the “subj e ct

- m atte r

- ju r isdi c tion a l doct r ine of

justicia b ility which considers i n jury, tracea b i l ity to the defen d ant, and redressability.” Physicia n s

Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc.

, 371 F.3d 1291, 1293 (11th Cir.

2004) (citation o m itted). Instead, § 1132 functions as a statutory s t an d i ng provi s i o n that “sets

forth those parties who m ay br i ng civil actions under ERISA and s p ecifies the types of actions

each of tho s e parties m a y pursue.” Gulf Life Ins. Co. v. Arnol d

, 809 F.2d 1520, 1524 (11th Cir.

1987). The language in the statute is clear: the on l y “parties who have independent standing to

sue an ERISA plan” are participa n ts, beneficia r ies, fiduciaries, or the Secretary of Labor. Cagle,

112 F.3d at 1514. How e ver, the Eleventh Circuit has ruled that Congress “did not intend to alter

the general rule that an assig n ee of a right has the sa m e standing to sue as the assignor,” so a

party m ay o btain “de r i v ative standing based upon an assign m ent of rights from an entity listed

in” § 1132(a). 1 Id. at 1515.

1 The Elev e nth Circ u it also pro v id e d a policy r ation a le f or its decisi o n that pri m arily

focused on the typical ER ISA assign m ent, from a plan bene f i ciary to his or her physician:

If provider

- assignees cannot sue the ERISA p l an for pay m e nt, they will bill the

participa n t o r bene f ici a ry directly f or the insu r ed m edical bills, and the p a rticipa n t

or bene f ici a ry will be r e quired to b r ing suit against the ben ef it plan when clai m s

go unpaid. On the other hand, if provider

- assignees can sue for pay m ent of

bene f its, an assign m ent will tra n s f er t h e bur d en of brin g ing suit f r o m plan

participa n ts and bene f iciaries to pr o viders [

, who] are better situated and financed

to pursue an action for benefits owed f o r their ser v ices. For these r e asons, the

int e rests of ERISA plan partici pa nts and beneficiaries are better served by

allowing p r o vider

- assig n ees to sue ER ISA plans.

Cagle , 112 F.3d at 1515 (internal citations and q uotation m arks o m itted).

Case: 13-13849 Date Filed: 04/01/2014 Page: 6 of 11- 5

- The Cagle panel did not “decide what constitutes a valid assign m ent of m edical benefits

covered by ERISA,” id. at 1516 n.3, but a subsequent panel has shed at least so m e light on that

question. In Hobbs v. Blue Cross Blue Shield of A l abam a

, two physician assistants sued an

ERISA plan f or its alle g ed f ailure to “include a provision in its health insurance policies for the

pay m ent of m edical or surgical services provided by licensed physician assis t ants in violation of”

a certain provision of Alaba m a law. 276 F.3d 1236, 1239 (11th Cir. 2001). In order to decide

whether that claim was co m pletely pree mpted and thus re m ovable to federal court, the court had

to deter m ine that the physician assistants had standing to sue under ER ISA; otherwise, their

claim could not have arisen under federal law. Id. at 1240. The physician assistants were

obviously not beneficiaries, pa r ticipants, or fiduciaries under § 1132(a), so the only way they

could have had standing to sue under ERISA w a s if they received a valid assign m ent of that right

from an in d ividual en u m erated in the statute. Id. at 1241 (citing Cagl e

, 112 F.3d at 1512

– 16.)

The Hobbs panel thus affi r m ed the Cagle holding, but clarified that derivative standing was

available o n ly “when t h e healt h ca r e provider had obtained a written assi g n m ent of clai m s from a

patient who had standing to sue under ERI S A as a ‘beneficiar y ’ or ‘ p articipa n t .’” Id. (citatio n s

o m itted). B ecause the ERISA plan ad m inistrator in Hobbs “failed to present proof of an

assign m ent, its reliance o n Cagle . . . [was] m isp l aced.” Id. at 1242.

Subsequent Eleventh Circu i t ca s es h ave confir m ed the Hobbs panel’s reliance on written

assign m ents from patients with standing to sue. In Connecticut State Dental Association v.

Anthem Health Plans, Inc.

, the plaintiff

- dentists were found to have standing where the

de f endant

- i n surer see k ing re m oval cited the c l aim f orms that the plai n ti ff s sub m itted f or

rei m bursement for m edical ser v ices rendered to the defendants’ beneficiaries. 591 F.3d 1337,

1351 (11th Cir. 2009). Each claim fo r m included the follow i ng sentence: “I hereby authorize

Case: 13-13849 Date Filed: 04/01/2014 Page: 7 of 11- 6

- pay m ent of the dental benefits otherwise payab l e to m e directly to the below na m ed dental

entity.” Id. Although the for m s did not contain the n a m es and signatures of the patients, the

plai n ti ff s r e presented t h at the sign a tures were o n f ile in their o ff ices a n d the f or m s m atched the

assigning patients with the relevant ERISA pla n s from which the plaintiffs sought benefits. Id. at

1351 n.11.

Nu m erous district courts have appli e d the doctri n e laid o u t in Cagle and Hobbs , including

this one. In Adventist Health System/Sunbelt Inc. v. B l ue Cross & Blue Shield of Florida, Inc

. ,

the undersigned approved a m agistrate judge’s report and recom m endation deter m ining that the

plai n ti ff

- pr o vider lac k ed stan d ing to sue, d espite having “ s ub m itted c o pies of so m e

. . . c laim

fo r m s,” because the provider fail e d to “sub m it copies of any written assign m ent of benefits

signed by [the relevant pla n ’s] subscribers.” No. 6:08

- c v

- 1706

- Orl

- 22 K RS, 2009 WL 722303, at

*7 (M.D. F l a. Mar. 18, 2009). This Court’s approach to derivative standing via assign m ent is

consistent with that of other judges in this district. See, e.g., C.N. Guerriere, M.D., P.A. v. Aetna

Health, Inc

. , No. 8:07

- cv

- 1441

- T

- 27MAP, 2007 W L 3521369, at *2

– 3 (M.D. Fla. Nov. 15,

2007) (refusing to find standing without “a written assignment of clai m s from a patient with

standing,” despite sub m i ssion of “e le ctro n ic cl a im f or m ” stating t h at patient “authorized pay m ent

of m e mber benefits by having a ‘Signature on file’ sta m p indicated on the claim fo r m ”); Current

Wave Med. Sys., Inc. v. Cigna Corp

. , No. 8:07

- cv

- 1102

- T

- 26EAJ, 2007 W L 5389120, at *2

(M.D. Fla. Aug. 3, 2007) (finding standing only where the plain t iff provided a sample of its

assign m ent of bene f its f orm and stated in the co mplaint that its su b scrib e r s ex e cuted such

assign m ents with th e ir p atie n t data f or m s).

B. Judgment on the Pleadings

Case: 13-13849 Date Filed: 04/01/2014 Page: 8 of 11- 7

- Although the Co m plaint does not specifically allege that Plaintiff received written

assign m ents from the beneficiaries of D e fendants’ plans, this issue is b e tter res o lved on sum m ary

judg m ent. Defendants’ f ailure to r a ise this issue until now allowed the Court to infer, despite the

inartful pleading, that Plaintiff had m et the require m ents for standing

. 2 In any eve n t, the issue is

moot. The liti g ation h as reached the close of discovery, ( see Doc. Nos. 66, 72), and the Court

f i nds that Plai n ti f f has f ailed to demonstrate an issue of m at e rial fact that would preclu d e

summary judg m ent on the question of standing.

C. Summary Judgment

Under clear Eleventh Circuit precedent and consistent d i strict court interpretation,

Plaintiff m u st have received written assign m ents of benefits from ERISA plan beneficiaries in

order to have derivative standing to sue. Plaintiff does not sub m it, nor claim to have received,

such assign m ents from any actual beneficiaries. Instead, Plaintiff asse r t s t h at it is entitled to

standing because plan benefic i aries assigned their rights to their physicians, who then

“transfer[red]” those assign m ents to Plaintiff. (Pl.’s Me m . Opp ’ n (Doc. No. 77) 8 (quoting Balda

Dep. (Doc. No. 74

- 2) 56:2

– 7).) P laintiff does not sub m it any legal authority for this proposition,

but m i sconstrues Connecticut State Dental to su g gest that “ t h e possi b ility of direct pay m ent” for

m edical services, re g ardless of the existence of an actual assign m ent, is su ff i cient to esta b li s h

standing to sue. As previously d is c ussed, the p lai n ti ff s in Connecticut State Dental possessed

written assign m ents of benefits from their patients; wh e re that case d i s cussed t h e “ possibility o f

2 The A m ended Co mplaint s tates t h e f ollowing: “Plai n ti f f is a t h ird p a rty bene f ici ar y to

such insurance policy benefits as t h e contracts between Defend a nts a n d their insureds evi n ce a

cle a r and m ani f est inte n t to p r i m arily and directly benefit medic a l service provi d ers such as the

Plaintiff.” (A m

. Compl. ¶ 17.) Although Plaintiff obviously did not claim an assign m ent, the

pleading e rr or was not so substa n ti a l that the Court f elt co mpelled to dis m iss on its own

initiative. Case: 13-13849 Date Filed: 04/01/2014 Page: 9 of 11- 8

- direct pay m ent,” it was referring to the m erit of the underly i ng clai m s for benefits, not the

plaintiffs’ standing. 591 F.3d at 1351, 1353.

Alternatively, Plaintiff asserts that it has s t andi n g because it received a u thorization from

so m e benef i ciaries to a p peal unfavorable be n e f its det e r m inat i ons on their behalf. ( See Pl.’s Me m

.

Opp’n Ex. A (Doc. No. 77

- 1).) Aft e r c are f ully conside r ing these f or m s, it is c lear to the Court

that the beneficiaries did not a s sign their rights to rei m burse m ent or to sue. The only obvious

agree m ent is to allow Plaintiff to pursue an appeal and to com m un i cate with D efendants in

conjunction therewith. These forms do not create a m ateri a l issue o f f act with respe c t to

Plainti ff ’s r e ceipt of written a s signments of ben ef its, esp e ci al ly when Pl ai nti f f has a d m itted that

it never received an act u al as si gn m e nt from the beneficiaries.

Defendants point, convincingly, to the deposi t ion of Plaintiff’s e x ecutive, Dr. Daniel

Balda. Plaintiff’s business m odel does not e m pha s ize co n t a c t with the p a tie n t , and it appears t ha t

in m ost cases, the phy s icia n ’s office fills out the paperwork to enroll the patie n t in Plaintiff’s

cardiac m o nitoring service. (Balda Dep. 51:5

– 16.) The patient does not have to sign the

enroll m ent fo r m

. ( Id. at 52:15

– 17.) The form does not r e quire the patient to m ake any

representations or w a rr a nties. ( Id. at 54:18

– 22.) When asked if patie n ts ever sign a docu m ent that

“[s]pecifically na m es Medico mp and assigns M edic o mp the bene f its of that p a tient ’ s insu r ance

policy,” Dr. Balda ans w ered, “No.” ( Id. at 60:1 5

– 20.) Finally, Dr. Balda ad m itted t h at Plaintiff

never received per m ission from t h e patients to bill on their behalf, only from their physicians.

( Id. at 68:17

– 24.) Based on this unco ntradicted evidence, the Court concludes that there are no

facts supporting Plainti f f’s assertion that it poss e ssed valid assign m ents of benefits from ERISA

plan participants or beneficia r ies. As a result, Defendants a r e entitled to sum m ary judg m ent.

Case: 13-13849 Date Filed: 04/01/2014 Page: 10 of 11- 9

- The Court expresses no opinion on the m erits of Plai n tiff’s claim

– it m ay well be that

Defendants are obligated to pay for Plaint i ff’s cardiac m o nitoring service under the various

ERISA plans. The Court is m i ndful of the policy considerations underlying the

Eleventh Circuit’s decision to extend derivative standing to m edical p r oviders, but the

controlling precede n t o n the subject only allows a narrow e x tension of standing where there is

e v idence of a valid as s i g n m e nt from a plan participant o r be n e ficiary. Absent s u ch e v idence,

Defendants are entitled to s u m m ary jud g m ent.

IV.

CONCLUSION

Based on the foregoing, it is ordered as follows:

1. Defendants’ Motion for Judg m ent o n the Pleadings or, alternatively, for

S u m m a r y Judg m ent (Doc. No. 73), filed April 1, 2013, is GRANTED IN P ART AND

D E NIED IN PART

.

2. The Motion for Judg m e n t on the P l eadings is DENIED ; however, t h e Motion

for

S u m m ary J u d g m ent is GRANTED

.

3. The Clerk is directed to CLOSE the case.

DONE and ORDERED in Cha m be r s, in Orlando, Florida on July 22, 2013. Case: 13-13849 Date Filed: 04/01/2014 Page: 11 of 11