IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6073

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S REPLY IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.'S MOTION TO DISMISS

Plaintiff Owen J. Rogal, D.D.S., P.C., d/b/a The Pain

Center, by and through its undersigned counsel, does hereby

respond to defendant's Motion and avers as follows:

1. The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place of

business being located at 501-07 South 12th Street, Philadelphia, PA

19147.

2. Defendant Skilstaf, Inc. is an Alabama corporation and

insurance provider/plan administrator with its headquarters and

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principal place of business located at P.O. Box 729, Alexander City,

AL 35011.

3. This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to this Court on or about November of

2005.

4. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant incurred by

patient/insured Dianna Berry.

5. Defendant filed the instant Motion to Dismiss upon grounds

of jurisdiction, venue and failure to exhaust administrative

remedies.

6. Defendant has withdrawn its arguments as to jurisdiction

and venue herein.

7. Plaintiff has properly pleaded its right to receive payment

from defendant and compliance with terms of insurance as well as all

conditions precedent. See Complaint, pp. 12.

8. Plaintiff has likewise pleaded breach of fiduciary duty on

defendant’s part. See Complaint, pp. 11, 13, 18.

9. Plaintiff has exhausted all administrative remedies prior

to filing the instant matter. By way of further definition, please

see Exhibit “A” attached hereto and made by reference a part hereof.

Plaintiff’s counsel was informed orally by defendant of its denial of

plaintiff’s bills for services rendered to Dianna Berry. Plaintiff’s

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counsel thereupon submitted the “appeal” of said denial in writing to

defendant’s administrator.

 10. Discovery will reveal the numerous attempts plaintiff made

by telephone and in writing to appeal defendant’s denial of payment

of benefits.

WHEREFORE, plaintiff respectfully requests that this court

deny defendant’s Motion to Dismiss.

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 3 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 4 of 12

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6073

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S BRIEF IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.’S MOTION TO DISMISS

I. INTRODUCTION

Defendant’s motion is not well-taken for several reason.

Plaintiff has properly exhausted its administrative remedies,

and has properly pleaded same. In addition, Defendant’s motion

to Dismiss pursuant to Fed. R.C.P. 12(b)(6) is in reality a

motion for summary judgment under Fed. R.C.P.56. Fed. R.C.P.

12(b)(6) is a “failure to state a claim upon which relief can be

granted”. Rule 12(b) asserts that “[i]f on the motion asserting

the defense number (6) to dismiss for failure of the pleading to

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 4 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 5 of 12

state a claim upon which relief can be granted, matters outside

the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed

of as provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material made pertinent to

such a motion by Rule 56.”

Needless to say, Plaintiff has had no opportunity to

conduct formal discovery nor has it received any documents from

Defendant outside of those attached to its Motion to Dismiss.

Plaintiff will not have a reasonable opportunity to present all

materials pertinent to this motion, as required under Rule 12(b)

until completion of discovery. Therefore, Plaintiff

respectfully requests that this motion be dismissed without

prejudice to refiling as a motion for summary judgment after

completion of discovery in this matter.

As to the specific issues addressed in Defendant’s motion

to dismiss, these issues are addressed herein below.

II. FACTS

The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place

of business being located at 501-07 South 12th Street,

Philadelphia, PA 19147. Defendant Skilstaf, Inc. is an Alabama

corporation and insurance provider/plan administrator with its

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 5 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 6 of 12

headquarters and principal place of business located at P.O. Box

729, Alexander City, AL 35011.

This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to this Court on or about November of

2005. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant

incurred by patient/insured Dianna Berry.

III. ARGUMENT

A. Standard of Review under Rule 12(b)(6)

A motion to dismiss under rule 12(b)(6) of the Federal

Rules of Civil Procedure is the appropriate method by which to

challenge the legal sufficiency of a claim. Brennan v.

National Telephone Director Corp., 850 F. Supp. 331, 335 (E.D.

Pa. 1994); See United States v. Marisol, Inc., 725 F. Supp. 833

(M.D. Pa. 1989). In reviewing the pleadings and any materials

of record, the court must accept as true all of the matters

pleaded and all reasonable inferences that can be drawn

therefrom, construing them in the light most favorable to the

non-moving party. Markowitz v. Northeast Land Co., 906 F.2d

100,103 (3rd Cir. 1990); Hough/Loew Assoc.,Inc. v. CLX Realty

Co., 760 F. Supp. 1141, 1142, (E.D. Pa. 1991). A complaint is

properly dismissed if it appears certain that the Plaintiff

cannot prove any set of facts in support of his claim that would

entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 6 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 7 of 12

S. CT. 99, 101-102, 2 L. E2d 80 (1957); Ramson v. Marrazzo, 848

F. 2d 398, 401 (3rd Cir. 1988).

Under the Rules of Civil Procedure, where a party attaches

materials outside the pleadings to a motion to dismiss, the

motion may be converted into a motion for summary judgment.

Fed. R. Civ. P. 12(c). This is at the discretion of the court.

Brennan v. National Telephone Directory Corp., 855 F. Supp.

331, 335 (E. D. Pa. 1994); Wiley v. Hughes Capital Corp., 746

F. Supp. 1264, 1275 (D.W.J. 1990); Kelly ex. rel. Michigan NCR

v. Asco Indus., 721 F. Supp. 873, 877 (W.D. Mich. 1989). The

court may also remove materials attached by both parties and

consider the motion only as a motion to dismiss. Brennan at 335,

336.

B. Plaintiff has properly pleaded exhaustion of

administrative remedies sufficient to defeat

defendant’s 12(b)(6) Motion

While defendant’s Motion should well be termed a summary

judgment Motion under Rule 56 for its subject matter as well as

inclusion of documents outside the pleadings to this point,

plaintiff nevertheless has well-pleaded its Complaint so as to

defeat the granting of a 12(b)(6) Motion.

Initially, plaintiff notes that of the cases cited by

defendant in support of its position, Harrow, Weldon, and Berger

were summary judgment motions under Rule 56 and thus inapposite

herein. Wolf involved an appeal to the 3rd Circuit Court of

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 7 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 8 of 12

Appeals. Regarding Troiani, said case was not concerning an

ERISA matter and was a combination Rule 12(b) and 56 motion.

This Court has stated with regard to 12(b)(6) motions:

“When considering a motion to dismiss a complaint for

failure to state a claim under Rule 12(b)(6), the Court must

accept as true all facts alleged by the non-moving party and any

reasonable inferences that can be drawn therefrom. Markowitz v.

Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (citing

Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)); see also

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50,

106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). The court is not

required to credit a party's "bald assertions" or "legal

conclusions" when deciding a motion to dismiss. See Id. The

Federal Rules merely require "a short and plain statement of the

claim showing that the pleader is entitled to relief," enough to

"give the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2)

(West 2001).”

Regional Employers' Assurance Leagues Voluntary Employees'

Beneficiary Ass’n Trust, Et Al. v. Sidney Charles Markets, Inc.,

et al., 2003 U.S. Dist. LEXIS 1380.

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 8 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 9 of 12

Further, there are two (2) recognized exceptions to the

exhaustion requirement recognized in this Circuit - the

futility exception and the exception for claims asserting a

breach of fiduciary duty... First, the exhaustion requirement

is waived in situations where resort to the plan remedies

would be futile. Harrow, 279 F.3d at 249 (citing Berger v.

Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990)). A

party claiming futility must make a "clear and positive

showing" that further attempts to seek redress under the

plan would be futile. Id. (citing Brown v. Cont'l Baking

Co., 891 F. Supp. 238, 241 (E.D. Pa. 1995)). In evaluating

a futility argument, a court must weigh several factors,

including whether: (1) plaintiff acted diligently in

pursuing administrative relief; (2) plaintiff acted

reasonably in seeking immediate judicial review; (3) a

fixed policy denying benefits existed; (4) the insurance

company failed to comply with its own internal procedures;

and (5) the plan administrator asserts that further

administrative actions are futile. Id. (citing Berger, 911

F.2d at 916-17). All factors need not weigh equally. Id...

Second, an exception exists where a party asserts a breach

of fiduciary duty claim against a plan administrator under

§ 404 of ERISA. Harrow, 279 F.3d at 253 (citing Zipf v. Am.

Tel. & Tel. Co., 799 F.2d 889, 892-93 (3d Cir. 1986)). The

breach of fiduciary duty claim must be independent of any

claim for benefits. Id. (citing Smith v. Sydnor, 184 F.3d

356, 363 (4th Cir. 1999)). If not, claimants could avoid

the exhaustion requirement by artfully pleading benefits

claims as breach of fiduciary duty claims. Id. (citing

Drinkwater v. Metro. Life Ins. Co., 846 F.2d 821, 826 (1st

Cir. 1988)).

Regional Employers' Assurance Leagues Voluntary Employees'

Beneficiary Ass’n Trust, Et Al. v. Sidney Charles Markets, Inc.,

et al., 2003 U.S. Dist. LEXIS 1380.

Herein, plaintiff has well-pleaded its right to bring the

instant action. See Complaint at pp. 12: Plaintiff, at all relevant

times, fully complied with all of the terms of the policies and all

conditions precedent and subsequent to plaintiff’s right to receive

benefits under the policy. Additionally, plaintiff has pleaded the

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 9 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 10 of 12

existence of defendant’s fiduciary duty. See Complaint at pp. 11,

13, 18. Given same, defendant’s Motion to Dismiss must fail as

plaintiff has sufficiently pleaded satisfaction of all conditions

precedent to filing suit.

As an additional matter, while discovery has not yet been

conducted and documents not yet been produced by defendant, plaintiff

does bear limited documentation of its actual “appeal” of defendant’s

denial of benefits. Upon being notified orally of defendant’s denial

of benefits, plaintiff’s counsel did memorialize its appeal to the

plan administrator. See Exhibit “A”, attached hereto and made by

reference a part hereof.

Therefore, given plaintiff’s well-pleaded Complaint and its

actual appeal of denial of benefits as evinced by Exhibit “A”,

plaintiff submits that it has satisfied its burden under Rule

12(b)(6) and Rule 56 so that defendant’s Motion must fail.

IV. CONCLUSION

In conclusion, for the foregoing reasons, Plaintiff

respectfully requests that this Honorable Court enter the

attached Order Denying Defendant’s Motion to Dismiss.

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 10 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 11 of 12

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

Plaintiff :

V. : NO. 05-6073

SKILSTAF, INC. :

Defendant :

___________________________________

CERTIFICATE OF SERVICE

Robert E. Cole, Esquire, attorney for plaintiff, hereby

verifies that on the date below, he served upon Jeanne L.

Bakker, Esquire, attorney for defendant above, a true and

correct copy of the foregoing Reply to Motion to Dismiss and

accompanying documents by first class mail, postage prepaid to

the following address:

Montgomery McCracken et al.

123 South Broad Street

Philadelphia, PA 19109

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00728-MHT-WC Document 5 Filed 12/14/2005 Page 11 of 11 Case 2:05-cv-06073-JCJ Document 5 Filed 12/14/2005 Page 12 of 12

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6073

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

ORDER

AND NOW, this day of , 2005, upon

consideration of defendant's Motion to Dismiss and plaintiff’s

Reply thereto and the memorandum of law filed in support

thereof, it is hereby ORDERED and DECREED that the Motion to

Dismiss is DENIED.

BY THE COURT:

_________________________

 J.

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