UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-cv-23584-DPG 

TRACELEY BOOTLE, 

 Plaintiff, 

v. 

AMERICAN BANKERS LIFE ASSURANCE 

COMPANY OF FLORIDA, 

Defendant. 

______________________________________/ 

DEFENDANT AMERICAN BANKERS LIFE ASSURANCE COMPANY 

OF FLORIDA’S MOTION TO DISMISS COUNTS III-VI OF THE 

FIRST AMENDED COMPLAINT AND SUPPORTING MEMORANDUM OF LAW 

Defendant American Bankers Life Assurance Company of Florida (“ABLAC”), pursuant 

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectfully moves to dismiss with 

prejudice Counts III through VI of the First Amended Complaint (ECF No. 26) for lack of subject 

matter jurisdiction and for failure to state a claim upon which relief can be granted. In support of 

this motion and supporting memorandum of law, ABLAC states as follows: 

INTRODUCTION 

Plaintiff Traceley Bootle (“Bootle” or “Plaintiff”), a former ABLAC employee, seeks relief 

for alleged violations of the notice provisions of the Consolidated Omnibus Budget Reconciliation 

Act of 1985 (“COBRA”). Plaintiff claims that ABLAC violated 29 U.S.C. § 1166, et seq., and 29 

C.F.R. § 2590.606-4, et seq., by failing to provide her sufficient notice of the right to elect 

continued health benefits following the termination of her employment. She asserts four counts 

alleging COBRA violations: Count III (Failure to Provide Timely Notice of Continuing Coverage 

in Violation of Section 502 of ERISA and 29 U.S.C. §§ 1132, 1163(a)(1), (2) and (4), 1166(a) and 

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29 C.F.R. § 2590.606-4); Count IV (Failure to Provide the Address to Which Payments Should be 

Sent in Violation of 29 C.F.R. § 2590.606-4(b)(4)(xii)); Count V (Failure to Include Explanatory 

Information in Violation of 29 C.F.R. § 2590.606-4(b)(4)(vi)); and Count VI (Failure to Provide 

COBRA Notice Written in a Manner Calculated “To Be Understood By The Average Plan 

Participant” in Violation of 29 C.F.R. § 2590.606-4(b)(4)) (the “COBRA Counts”).1 See First 

Amended Complaint (“Am. Compl.”), ¶¶ 66-112. As a result of the alleged COBRA violations, 

Plaintiff seeks injunctive relief, statutory penalties in the amount of $110 per day, and attorneys’ 

fees and costs. Am. Compl., ¶ 94. Notably, although these claims are premised on the alleged 

deficient Notice, Plaintiff fails to attach a copy of such Notice to her original or First Amended 

Complaint. A review of such Notice, which the Court may properly consider because it is 

expressly referenced in and incorporated into Plaintiff’s First Amended Complaint, demonstrates 

clearly that all of Plaintiff’s COBRA claims are without any factual or legal basis. 

Both the original complaint (ECF No. 1-2) and First Amended Complaint are a copy-andpaste from complaints in other cases filed by Plaintiff’s counsel.2

 Its allegations, right down to the 

typos, are lifted directly from complaints in other cases about other companies’ COBRA notices, 

without regard for how they relate to Plaintiff, ABLAC, or the COBRA Notice at issue. As a 

 1

 Counts I and II allege claims under the Florida Civil Rights Act of 1992, Fla. Stat. 

§760.01, et seq., and the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., respectively. ABLAC 

is filing an Answer and Affirmative Defenses to those claims contemporaneously with the filing 

of this motion in response to Plaintiff’s First Amended Complaint. 

2

 Most of the First Amended Complaint’s COBRA allegations are identical to those in 

Heyaime v. Spirit Airlines, Inc., No. 0:21CV61779 (S.D. Fla. 2021), aside from minor alterations. 

Compare Am. Compl. ¶¶ 31-36, 75-77, 79-112 with Heyaime Compl. Dkt. 1, ¶¶ 36-41, 68-70, 73-

107; see also Am. Compl. ¶¶ 83, 89, 92 (containing typo, missing word, and missing punctuation, 

respectively); Heyaime Compl. Dkt. 1, ¶¶ 77, 83, 86 (containing same typo, same missing word, 

and same missing punctuation). A copy of the Hevaime Complaint is attached as Exhibit 1; see 

also Beasley v. University of Miami, No. 1:21CV22260 (S.D. Fla. 2021), Compl. Dkt. 1, ¶¶ 94, 

100, 103 (similarly containing same typo, same missing word, and same missing punctuation). 

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result, the First Amended Complaint contains holdover allegations that do not apply and asserts 

“facts” that are contradicted by documents referenced or incorporated in the First Amended 

Complaint, and must therefore be disregarded. 

These Counts should be dismissed because the Plaintiff lacks constitutional standing to sue 

for alleged injuries because she was no longer a plan participant or beneficiary at the time she filed 

suit. Dismissal is also proper because Plaintiff has failed to plead plausible factual allegations that 

support the elements of her alleged COBRA causes of action against ABLAC. Her claims 

regarding the alleged insufficiency of the COBRA election notice she received are refuted by the 

Notice itself and lack merit. For these reasons, as more fully set forth below, the Court should 

dismiss Counts III through VI with prejudice. 

BACKGROUND AND RELEVANT FACTS 

Plaintiff was employed with ABLAC as a supervisor. Am. Compl., ¶ 16. During her 

employment, she was a participant in an employer sponsored employee welfare benefit plan 

created pursuant to the Employee Retirement Income Security Act (“ERISA”) and sponsored by 

Assurant, Inc. as Plan Administrator (the “Plan”).3 Plaintiff’s employment was involuntarily 

terminated on February 6, 2020. Am. Compl., ¶ 24. The termination constituted a qualifying event 

within the meaning of ERISA, 29 U.S.C. § 1163(2). COBRA permits qualified ERISA plan 

beneficiaries who lose coverage under a group health plan to elect continuation health coverage 

for a period up to 18 months. 29 U.S.C. § 1162(2)(A). The COBRA election must be completed 

during the 60-day period following receipt of a COBRA election notice. Id. § 1165(a)(1). Plaintiff 

claims – in conflicting allegations – that she did not receive a COBRA election notice, yet she also 

 3

 ABLAC is an indirect subsidiary of Assurant, Inc. See ABLAC’s Corporate Disclosure 

Statement, ECF No. 12. 

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alleges that the COBRA notice she received failed to comply with statutory and regulatory 

requirements. Compare Am. Compl. ¶¶ 12, 14, 26, 37-38, 78 (no notice received) and ¶¶ 36, 72, 

81, 83-88, 93, 96-100, 102-104, 109, 112 (non-compliant notice). But Plaintiff is wrong on both 

fronts. She in fact received a COBRA notice that complied fully with COBRA. 

On February 12, 2020, just 6 days after the termination of Plaintiff’s employment on 

February 6, 2020, a COBRA notice was sent to Bootle at her address of record (the “2020 COBRA 

Notice”) informing her of her ability to continue health insurance coverage.4

 A copy of the 2020 

COBRA Notice is attached as Exhibit 2. The Notice prominently states on the first page that it 

contains important information regarding COBRA benefits: 

IMPORTANT NOTICE REGARDING YOUR COBRA CONTINUATION COVERAGE 

The following notice contains important information about your† right to continue 

coverage through the group health plan benefits sponsored by Assurant, Inc. (the 

“Plan(s)”) as well as other health coverage options that may be available to you†, 

including coverage through the Health Insurance Marketplace.... Your COBRA 

Election Form lists these specific benefits. Please see your Summary Plan 

Description (“SPD”) for specific details about the Plan(s). Please make sure you 

read the information contained in this notice very carefully as it describes your 

rights and obligations under the COBRA regulations....5

Enclosed in this packet you will find the following: 

COBRA Election Notice and Other Health Coverage Alternatives - this outlines 

your COBRA rights, including deadlines, duration of coverage(s), and your 

payment responsibilities. 

Exhibit 2, at 1. The Notice advised Plaintiff that the enclosed COBRA Election Form was due “on 

 4

 The Court may consider the attached COBRA notices under the incorporation by 

reference doctrine, which allows a court to consider a document attached to a motion to dismiss 

without converting the motion into one for summary judgment where, as here, the attached 

document is “(1) central to the plaintiff’s claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 

1125, 1134 (11th Cir. 2002). 

5

 All emphasis is in the original unless otherwise indicated. 

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or before 5/2/2020.” Id. The 2020 COBRA Notice, mailed by WageWorks, Inc., the Plan’s

COBRA benefits administrator, further stated that, “If you have any questions or require further 

clarification about this notice or your rights to COBRA coverage, please feel free to contact our 

office so we may assist you. Our Customer Service Representatives may be reached at 888-678-

4881 or through the Message Center at mybenefits.wageworks.com.” Id. 

On March 11, 2021, Congress enacted the American Rescue Plan Act of 2021 (“ARPA”). 

Pub. L. No. 117-2 [H.R. 1319], 135 Stat. 4 (2021). Section 9501 of the ARPA provides for 

temporary COBRA premium assistance for certain “Assistance Eligible Individual” for periods of 

coverage beginning on or after April 1, 2021, through periods of coverage beginning on or before 

September 30, 2021. On May 18, 2021, the Internal Revenue Service and the Treasury Department 

issued Disaster Relief Notice 2021-31 (https://www.irs.gov/pub/irs-drop/n-21-31.pdf) providing 

guidance regarding COBRA continuation coverage and COBRA premium assistance under the 

ARPA. Enactment of the ARPA triggered a second COBRA continuation notice to Plaintiff on 

June 7, 2021 (the “2021 COBRA-ARPA Notice”). A copy of the 2021 COBRA-ARPA Notice is 

attached as Exhibit 3. The 2021 COBRA Notice was also mailed to Bootle at her address of 

record. The 2021 COBRA-ARPA Notice provided: 

IMPORTANT NOTICE REGARDING YOUR COBRA CONTINUATION 

COVERAGE AND EXTENDED ELECTION PERIODS UNDER THE AMERICAN 

RESCUE PLAN ACT OF 2021 (ARPA) 

Our records show that you or a COBRA Qualified Beneficiary in your 

family was eligible to elect COBRA and did not elect, or elected COBRA 

continuation coverage and dropped such coverage or elected COBRA 

continuation coverage and have not paid your account current. Under 

ARPA, you and/or your dependents may be eligible for premium 

assistance and a new right to elect COBRA continuation coverage for the 

period of April 1, 2021 - September 30, 2021.... 

Exhibit 3, at 1. The 2021 COBRA-ARPA Notice stated that the COBRA-ARPA election form 

was required to be completed and submitted by August 9, 2021. Id. 

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As stated in the 2021 COBRA-ARPA Notice, notwithstanding her failure to elect COBRA 

coverage in 2020, the ARPA extended the election period such that the Plaintiff could have been 

eligible to elect COBRA continuation coverage benefits for the period from April 1, 2021 through 

September 30, 2021 and to possibly receive premium assistance – had she elected to do so by 

August 9, 2021. Id. at 1, 10. Plaintiff does not allege that she elected COBRA continuation 

coverage pursuant to the 2020 COBRA Notice or the 2021 COBRA-ARPA Notice. 

On July 26, 2022, Plaintiff filed her original complaint. ECF No. 1-2. ABLAC filed its 

first motion to dismiss in response on November 23, 2022. ECF No. 15. Plaintiff then filed her 

First Amended Complaint on December 15, 2022.6

 ECF. No. 26. In Plaintiff’s First Amended 

Complaint, she did not cure any of the original complaint’s deficiencies or attempt to address the 

inconsistencies within her COBRA claims as pointed out by ABLAC’s first motion to dismiss. As 

noted earlier, neither the original complaint nor the First Amended Complaint included a copy of 

ABLAC’s 2020 COBRA Notice or the 2021 COBRA-ARPA Notice. But both Notices were 

included in ABLAC’s first motion to dismiss. However, Plaintiff chose to ignore the Notices 

attached, and instead, she amended the COBRA allegations in the Complaint minimally without 

addressing the core problems with her original complaint. Plaintiff’s conflicting allegations 

regarding whether or not she received the 2020 COBRA Notice continues to be present throughout 

the First Amended Complaint. Compare Am. Compl. ¶¶ 12, 14, 26, 37-38, 78 (no notice received) 

and ¶¶ 36, 72, 81, 83-88, 93, 96-100, 102-104, 109, 112 (non-compliant notice). Further, Plaintiff 

added to Count III of the First Amended Complaint by citing to an alleged violation of 29 U.S.C. 

 6

 Under Fed. R. Civ. P. 15(a)(1)(B), a party may amend its pleading once as a matter of 

course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion 

under Rule 12(b), (e), or (f), whichever is earlier. ABLAC filed its first motion to dismiss on 

November 23, 2022, thus, Plaintiff had until December 14, 2022 to amend her complaint (21 days). 

Plaintiff amended her original complaint one day late on December 15, 2022. 

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§ 1163(a)(1), (2), and (4) in the title of Count III. Am. Compl. at 11. However, nowhere in the 

First Amended Complaint does Plaintiff address this newly included allegation regarding § 

1163(a)(1), (2), and (4). Thus, Plaintiff’s First Amended Complaint is still full of inconsistencies 

and contradictions that were not resolved upon amendment. 

ARGUMENT 

I. THE COBRA COUNTS SHOULD BE DISMISSED BECAUSE PLAINTIFF 

LACKS STATUTORY STANDING UNDER ERISA 

Bootle seeks recovery of statutory penalties and other relief under ERISA’s enforcement 

provisions for failure to meet COBRA election notice requirements. See Am. Compl. ¶ 36. 

However, Plaintiff cannot assert a cause of action under ERISA because she no longer qualifies as 

a “plan participant.” Under ERISA, a plan administrator's alleged failure to provide documents is 

actionable under § 1132(c) only when: (1) the request is made by a plan participant or beneficiary 

and (2) the lawsuit demanding penalties is filed by a plan participant or beneficiary. A 

“participant” is “any employee or former employee... who is or may become eligible to receive a 

benefit of any type from an employee benefit plan.” 29 U.S.C. § 1002(7) (emphasis added). The 

U.S. Supreme Court has stated that the term “participant” means either employees in, or reasonably 

expected to be in, currently covered employment, or former employees who have a reasonable 

expectation of returning to covered employment or who have a colorable claim to vested benefits. 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989) (cleaned up). The Court 

continued: “in order to establish that he or she ‘may become eligible’ for benefits, a claimant must 

have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility 

requirements will be fulfilled in the future.” Id. at 117–18. “A former employee who has neither 

a reasonable expectation of returning to covered employment nor a colorable claim to vested 

benefits, however, simply does not fit within the [phrase] ‘may become eligible.’” Id. at 118. 

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To be sure, former employees may be ERISA participants. LaRue v. DeWolf, Boberg & 

Assocs., Inc., 552 U.S. 248, 256 n.6 (2008). Yet participants must have a “colorable claim to 

vested benefits.” Bruch, 489 U.S. at 117–18 (citation omitted). Notably, “the statutory penalty for 

failing to provide plan documents to a participant... is not a [plan] benefit” in itself. Harzewski v. 

Guidant Corp., 489 F.3d 799, 805 (7th Cir. 2007). “Eligibility is determined at the time that the 

lawsuit is filed.” Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 304 (6th Cir. 2006). Thus 

if Plaintiff Bootle was “neither a participant nor a beneficiary under the [Plan] at the time [she] 

commenced this action, [she] lacks standing to claim that [ABLAC] failed to produce requested 

Plan documents.” Id. Moreover, Plaintiff cannot make a claim for vested benefits because she is 

no longer eligible for COBRA continuation coverage as that right expired well in advance of the 

commencement of this litigation. 

Plaintiff Bootle is no longer a Plan participant and was not a Plan participant at the time 

suit was filed. In the First Amended Complaint, Plaintiff admits that she is not a current participant 

by stating that she was a plan participant and may once again become eligible for coverage 

benefits. Am. Compl. ¶¶ 41-42. (emphasis added). COBRA benefits are available for 18 months 

where the qualifying event is “termination.” 29 U.S.C. §1162(2)(A)(i). See Geissal v. Moore Med. 

Corp., 524 U.S. 74, 80 (1998) (“If a qualified beneficiary makes a COBRA election, continuation 

coverage dates from the qualifying event, and when the event is termination or reduced hours, the 

maximum period of coverage is generally 18 months.”). Additionally, while the premium 

assistance provided by the ARPA provided continuation coverage until September 30, 2021, 

Bootle’s eligibility for the premium assistance would have expired when she reached the end of 

her maximum COBRA continuation period in August 2021 (18 months after her termination in 

February 2020). Pub. L. No. 117-2 [H.R. 1319], 135 Stat. 4 § 9501 (2021). 

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Plaintiff filed her original complaint on July 26, 2022. See ECF No. 1-2. Because Plaintiff 

waited over two-and-a-half years after her qualifying event (termination) and after expiration of 

the ARPA continuation period ending September 30, 2021, her COBRA benefits have expired. 

See Schwartz v. ADP, Inc., 2021 WL 5760434, at *3–4 (M.D. Fla. Dec. 3, 2021) (finding that 

plaintiff did not have standing under ERISA because plaintiff was not a plan participant when he 

sued and he failed to identify or pursue a single ERISA benefit to which he was, or could be, 

entitled to); see also Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 101 (2d Cir. 2005) 

(“Participants can lose standing to sue if, despite their having suffered an alleged ERISA violation, 

their participant status has been terminated before suit is filed.”); Harzewski, 489 F.3d at 804–05 

(“The statute authorizes suits for benefits, just not for damages separate from those benefits.... Nor 

can [plaintiff] sue to obtain the statutory penalty for failing to provide plan documents to a 

participant, since that penalty is not a benefit either.”). 

Additionally, Plaintiff has provided no explanation as to why she waited over two-and-ahalf years to file her original complaint. Courts have previously found in ERISA cases that it 

would not be equitable to allow a plaintiff to go forward with their action for penalty damages 

where the unexplained and unreasonable delay in filing the action would make it more difficult for 

a defendant to defend themselves at a later date. See Winchester v. Pension Comm. of Michael 

Reese Health Plan, Inc. Pension Plan, 942 F.2d 1190, 1194 (7th Cir. 1991) (“find[ing] that 

[plaintiff’s] delay of more than three years in bringing this action, while it may not necessarily 

reach the level of laches, provides additional support for not expanding the definition of 

“participant” to include an individual in [plaintiff’s] situation); see also Farries v. 

Stanadyne/Chicago Div., 832 F.2d 374, 382 (7th Cir. 1987) (“It would place a terrible burden on 

a company to preserve evidence for claims that may never be raised.”). Similarly, Plaintiff’s delay 

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of almost three years in bringing this action provides additional support for the Court to find that 

Plaintiff is no longer a plan participant. 

Because Plaintiff cannot make a claim for vested benefits, in order to qualify as a plan 

participant who may become eligible to receive a benefit under ERISA, she must have a reasonable 

expectation of returning to covered employment. Bruch, 489 U.S. at 117. In the First Amended 

Complaint, Plaintiff, for the first time, states that she “seeks reinstatement to her previous position 

with all previously afforded benefits herein.” Am. Compl. ¶ 42. However, merely claiming to 

seek reinstatement does not demonstrate that Plaintiff has a reasonable expectation to return to 

covered employment. In fact, Plaintiff does not even allege in the First Amended Complaint that 

she has a reasonable expectation to return to employment with ABLAC. Plaintiff has no statutory 

right to be rehired, nor any contractual right to be rehired as she was terminated for cause. See

Shawley v. Bethlehem Steel Corp., 784 F. Supp. 1200, 1205 (W.D. Pa. 1992); see also Winchester, 

942 F.2d at 1193 (refusing to hold that “by filing a discrimination suit, [after being dismissed for 

cause], plaintiff may harbor a ‘reasonable expectation of returning to covered employment.’”); 

Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 607 (8th Cir. 2003) (finding that former 

employees did not have a reasonable expectation of returning to covered employment after they 

were terminated, as they did not “have the option or expectation of returning to work”). Similarly, 

Plaintiff does not have a reasonable expectation of returning to employment with ABLAC. Thus, 

dismissal is proper because Bootle lacks statutory standing under ERISA. 

II. THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED UNDER 

12(B)(1) FOR LACK OF ARTICLE III STANDING 

“Article III of the United States Constitution limits the jurisdiction of federal courts to 

‘Cases’ and ‘Controversies,’ U.S. Const. Art. III, § 2, and ‘the core component of standing is an 

essential and unchanging part of the case-or-controversy requirement of Article III.’” Hollywood 

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Mobile Estates, Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264-65 (11th Cir. 2011) (citation 

omitted). To establish standing, a plaintiff must demonstrate: (1) she suffered an “injury-in-fact”; 

(2) there is a causal connection between the asserted injury-in-fact and the challenged action of the 

defendant; and (3) the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560–61 (1992). An injury-in-fact must be “an invasion of a legally protected 

interest” that is “concrete and particularized” and “actual or imminent.” Id. at 560. 

A. There is No Causal Connection Between Plaintiff’s Purported Injuries and the 

Alleged Deficiencies In the 2020 COBRA Notice. 

Plaintiff cannot establish causation or redressability with respect to her COBRA Counts. 

The causation element of Article III standing requires “a causal connection between the injury and 

the conduct complained of—the injury has to be fairly traceable to the challenged action of the 

defendant, and not the result of the independent action of some third party not before the court.” 

Hollywood Mobile Estates Ltd., 641 F.3d at 1265 (quoting Lujan, 504 U.S. at 560). 

Plaintiff claims that she lost health insurance and has unpaid medical bills as a result of the 

allegedly deficient 2020 COBRA Notice. Am. Compl., ¶¶ 74, 81, 88. However, Plaintiff’s First 

Amended Complaint continues to be full of inconsistencies, thus making it impossible to fairly 

trace her purported injuries to the actions, or inaction, of ABLAC. Plaintiff has not attempted to 

cure any of the deficiencies from her original complaint, as pointed to in ABLAC’s first motion to 

dismiss. For example, Plaintiff first alleges that she never received a COBRA notice from ABLAC 

and thus, she could not make an informed decision to elect continuation coverage. Am. Compl., 

¶¶ 26, 38-39. However, the First Amended Complaint continues to state that the allegedly deficient 

2020 COBRA Notice confused and misled the Plaintiff. Id., ¶ 81. It is still unclear from the First 

Amended Complaint as to whether Plaintiff did or did not receive the 2020 COBRA Notice, as the 

allegations are contradictory and inconsistent with the 2020 COBRA Notice that was sent to the 

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Plaintiff. Thus, her purported injury in fact is not fairly traceable to the allegedly deficient 2020 

COBRA Notice, nor the alleged inaction to send the same Notice. 

Furthermore, Plaintiff cannot simultaneously allege that (1) she never received the 2020 

COBRA Notice and (2) that she was injured from the deficiencies contained within the 2020 

COBRA Notice (that she never received). Thus, Plaintiff does not have standing to assert this 

claim because she cannot prove that the deficiencies in the 2020 COBRA Notice resulted in actual 

harm to her if she never received this Notice from ABLAC. 

B. There is No Causal Connection Between the Alleged Informational

Deficiencies in the 2020 COBRA Notice and Plaintiff’s Purported Injuries. 

The Eleventh Circuit recently issued an en banc decision where the court reiterated that a 

bare procedural violation of a statute is not enough to show concrete harm. See Muransky v. 

Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020); see also Spokeo, Inc. v. Robins, 578 

U.S. 330, 341 (2016) (holding that a “bare procedural violation, divorced from any concrete harm” 

is not enough to support standing). Instead, a plaintiff must establish one of two things: (1) that 

the statutory violation resulted in actual harm—whether tangible or intangible; or (2) the violation 

“posed a material risk of harm to the plaintiff.” Godiva, 979 F.3d at 928. If the answer to both of 

these inquires is no, the plaintiff failed to establish standing. Id. Courts cannot imagine or piece 

together an injury sufficient to give a plaintiff standing when it has demonstrated none, and courts 

are powerless to ‘create jurisdiction by embellishing a deficient allegation of injury. Id. at 925. 

Plaintiff alleges that ABLAC’s 2020 COBRA Notice was informationally deficient in three 

ways: (1) the Notice failed to provide the address to which payments should be sent (Count IV); 

(2) the Notice failed to explain the consequences of failing to elect or waiving continuation 

coverage (Count V); and (3) the Notice was not written in a manner calculated “to be understood 

by the average plan participant” (Count VI). The Plaintiff cannot establish a causal connection for 

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the second and third alleged informational deficiencies. As explained in Section III.B., infra, 

Count IV fails as a matter of law because the 2020 COBRA Notice in fact provided an address to 

which continuation coverage premiums should be sent. Plaintiff’s allegations are contradicted by 

the plain language of the Notice and cannot serve as a basis for injury in fact. 

Plaintiff has not established an injury-in-fact or causation with regard to Count V. In this 

Count, Plaintiff only alleges that there is “no explanation [in the 2020 COBRA Notice] that a 

qualified beneficiary’s decision whether to elect continuation coverage will affect the future rights 

of qualified beneficiaries to portability of group health coverage, guaranteed access to individual 

health coverage, and special enrollment”. Am. Compl., ¶ 110. Plaintiff does not explain how the 

lack of information regarding a qualified beneficiary harmed her or interfered with her ability to 

elect COBRA coverage. In fact, nowhere in the First Amended Complaint does Plaintiff state that 

she has any beneficiaries or dependents. Thus, Plaintiff is unable to show that she was injured by 

the lack of information regarding beneficiaries when she herself does not have any beneficiaries. 

Without more, this allegation is a "bare procedural violation, divorced from any concrete harm." 

Spokeo, 578 U.S. at 341. Plaintiff must support this claim by showing either some harm caused 

by the violation or a material risk of harm. Without establishing this, her claim cannot stand. 

Plaintiff has also not established causation as to Count VI. This Count alleges that the 

COBRA Notice was not written to be understood by the average plan participant. Am. Compl., ¶¶ 

83, 87, 92, 95, 112. Plaintiff states that the [2020 COBRA] Notice both confused and misled her, 

but she never explains how or why the 2020 COBRA Notice confused her. Am. Compl., ¶ 81. 

She does not point to any confusing statements in the 2020 COBRA Notice itself, or any omissions 

that could have cured the alleged deficiencies. She also fails to explain how these alleged 

deficiencies led to her inability to understand the 2020 COBRA Notice in a way that impeded her 

decision to elect or not elect COBRA coverage. Plaintiff also alleges that the Notice was sent in a 

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haphazard and piece-meal fashion (Am. Compl., ¶ 83), but this statement is patently false as the 

2020 COBRA Notice was sent to Plaintiff as a single notice consisting of 14 pages, including a 

physical election form to be sent if electing coverage. See Exhibit 2. Again, Plaintiff does not 

point to any components of the 2020 COBRA Notice that were piece-mealed in a manner that 

would lead Plaintiff to fail to understand her rights. 

Although it is premature at this stage to assess the reasonableness of the 2020 COBRA 

Notice, this is not a free pass around the requirements of Article III. See Carter v. Sw. Airlines 

Co., 2020 WL 7334504, at *7 (M.D. Fla. Dec. 14, 2020) (holding that plaintiff did not have Article 

III standing in COBRA action because plaintiff failed to explain how the alleged deficiencies in 

the notice led to her inability to elect continuation coverage). Plaintiff must allege a concrete 

injury-in-fact and causation to establish standing. See Godiva, 979 F.3d at 925 (“We will not 

‘imagine or piece together an injury sufficient to give [a] plaintiff standing when it has 

demonstrated none,’ and we are powerless to ‘create jurisdiction by embellishing a deficient 

allegation of injury.’”). Plaintiff’s conclusory statements do not satisfy this burden. See Jackson v. 

BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (“[C]onclusory allegations, 

unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent 

dismissal.”). The Court should dismiss these informational injuries for failure to establish standing. 

III. THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED UNDER 

12(B)(6) FOR FAILURE TO STATE A CLAIM FOR RELIEF 

In addition to failing to establish Article III standing, the First Amended Complaint does 

not state a plausible claim for relief under ERISA. Contrary to Plaintiff Bootle’s allegations, the 

2020 COBRA Notice complies with 29 C.F.R. § 2590.606-4, the applicable Department of Labor 

regulation. Under ERISA, the plan administrator of an employer health plan is required to provide 

eligible participants with “written notice ... of the[ir COBRA healthcare continuation] rights.” 29 

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U.S.C. § 1166(a). Under Eleventh Circuit law, the information contained in a COBRA notice must 

“be sufficient to permit the discharged employee to make an informed decision whether to elect 

coverage.” Scott v. SunCoast Beverage Sales, Ltd., 295 F.3d 1223, 1230 (11th Cir. 2002). 

Technical deficiencies are not fatal and will not impose liability if the deficiencies “did not prevent 

[the plaintiff] from making a meaningful choice to continue her coverage.” Franks v. Cent. Garden 

& Pet Co., 2007 WL 2320624, at *6 (M.D. Ga. Aug. 10, 2007). 

The Department of Labor issued a Model COBRA Continuation Coverage Election Notice 

and included it in the appendix to 29 C.F.R. § 2590.606-4 (the “Regulation”).7 Although the notice 

is “not mandatory,” “[u]se of the model notice, appropriately modified and supplemented, will be 

deemed to satisfy the notice content requirements.” 29 C.F.R. § 2590.606-4(g) (emphasis added). 

Plaintiff’s First Amended Complaint should be dismissed for failure to state a claim upon which 

relief can be granted because the 2020 COBRA Notice includes all of the information required by 

the Regulation and closely tracks the Model Notice, even expanding upon the Model Notice to 

include additional information required by the Regulation. 

A. The COBRA Notice Complies with 29 U.S.C. § 1166(a) and 29 C.F.R. 

§ 2590.606-4(b). 

Count III of the First Amended Complaint is an incomprehensible recitation of alleged 

ERISA and COBRA statutory and regulatory violations, many of which are then repeated in 

Counts IV, V, and VI. These allegations, which were copied from other COBRA actions, are 

inapplicable here.8

 

 7

 A copy of the Model COBRA Continuation Coverage Election Notice is also available 

on the Department of Labor website at https://www.dol.gov/agencies/ebsa/laws-andregulations/laws/cobra (last visited Dec. 28, 2022). 

8 See Heyaime supra, note 2. 

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The 2020 COBRA Notice contains all information and was timely sent as required by 29 

U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4(b). To begin, Plaintiff alleges that ABLAC never 

sent Plaintiff the required COBRA continuation notice. Am. Compl., ¶ 37. However, the 2020 

COBRA Notice reflects that it was sent on February 12, 2020, a mere six days after Plaintiff’s 

qualifying event took place. 2020 COBRA Notice (Ex. 2) at 1. Importantly, a plan sponsor or 

administrator need not ensure that a beneficiary actually receives the required notice. Rather, what 

is important is whether the plan administrator sent the notice using methods that are “reasonably 

calculated” to reach plan participants, such as through in-hand delivery and first class mail to the 

beneficiary’s last known address. See 29 C.F.R. § 2520.104b-1(b)(1), (c)(1); DeBene v. BayCare 

Health Sys., Inc., 688 F. App'x 831, 839 (11th Cir. 2017). In the present case, ABLAC used a 

method (U.S. postal mail) that was reasonably calculated to reach Plaintiff by sending the 2020 

COBRA Notice to Plaintiff’s last known address in Miami, Florida. Thus, Plaintiff cannot 

plausibly claim that ABLAC did not send a timely COBRA notice. 

Plaintiff also alleges that the 2020 COBRA Notice itself never actually explains how to 

enroll in COBRA, in violation of 29 C.F.R. § 2590.606-4(b)(4)(v), and that it does not include a 

physical election form. Am. Compl., ¶ 85. However, the 2020 COBRA Notice does both. The 

Notice includes a heading entitled “How Can I Elect COBRA Coverage” in bold typeface. 2020 

COBRA Notice (Ex. 2) at 4. The Notice then states: 

To elect COBRA coverage, you must complete the enclosed COBRA Election 

Form and submit it to WageWorks, Inc. as stated on the COBRA Election Form no 

later than the end of your election period, which is 5/2/2020. Under federal law, 

you have 60 days after the later of the date of this notice or the date coverage is lost 

under the Plan(s) to elect COBRA coverage.9

 

 9 See Exhibit 4 at 1. Exhibit 4 is a comparison of the DOL Model Election Notice with 

ABLAC’s 2020 COBRA Notice. 

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The 2020 COBRA Notice also includes “COBRA ELECTION FORM INSTRUCTIONS” 

and a COBRA ELECTION FORM (physical election form like the Model Election Notice) that 

includes information about how to elect continuation coverage. Id. at 10-11, 13-14. The 

Instructions include a heading entitled “Electing COBRA Coverage” in bold typeface. Thus, 

Plaintiff’s assertion that the Notice does not explain how to elect continuation coverage or fails to 

include a physical election form is simply incorrect. Plaintiff’s claim that the Notice merely directs 

plan participants to a “catch-all” general H.R. phone number to enroll in COBRA is also incorrect. 

Am. Compl., ¶ 85. The 2020 COBRA Notice states, “If you have any questions or require further 

clarification about this notice or your rights to COBRA coverage, please feel free to contact our 

office so we may assist you. Our Customer Service Representatives may be reached at 888-678-

4881 or through the Message Center at mybenefits.wageworks.com.” 2020 COBRA Notice (Ex. 

2) at 1. There is nothing confusing or vague regarding the number to be called for assistance with 

the COBRA continuation notice or election form. Count III fails as a matter of law because the 

2020 COBRA Notice complied fully with the COBRA notice requirements and Regulations. 

B. The Notice Provides the Address to Which Payments Should be Sent. 

In Count IV of the First Amended Complaint, Plaintiff claims that the 2020 COBRA Notice 

violates 29 C.F.R. § 2590.606-4(b)(4)(xii) for failure to provide the address to which payments 

should be sent. Am. Compl., ¶¶ 84, 103. This too is incorrect. The election form in the 2020 

COBRA Notice includes a section titled “Paying for COBRA Coverage” in bold typeface. 2020 

COBRA Notice (Ex. 2) at 10. The 2020 COBRA Notice states, “Please note that your initial and 

ongoing payments will be sent to a different address than the COBRA Election Form. Please 

make checks payable to: WageWorks, Inc., PO Box 660212, Dallas, TX 75266-0212. Id. at 

11. Contrary to Plaintiff’s claim, the Notice clearly provides (consistent with the DOL Model 

Election Notice) the address to which payments should be sent. Id.; see also Ex. 4 at 1. Plaintiff’s 

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assertion that she was “left ready and willing, but unable, to properly enroll and maintain 

continuation coverage” because of the lack of an address of where to send payments to is thus not 

plausible nor credible. Am. Compl., ¶ 105. Plaintiff also states that ABLAC violates the regulation 

because the Notice fails to include information on how coverage can be lost prematurely. Am. 

Compl., ¶ 86. This is again incorrect. The Notice includes information about the consequences of 

delayed and non-payment, and this language is consistent with the DOL Model Election Notice. 

2020 COBRA Notice (Ex. 2) at 6-7; see also Ex. 4 at 2. 

For these reasons, Count IV of the First Amended Complaint fails to state a cause of action. 

C. The Notice Provides an Explanation of the Consequences of Failing to Elect or 

Waive Continuation Coverage. 

In Count V of the First Amended Complaint, Plaintiff Bootle alleges that ABLAC failed 

to provide all required explanatory information under 29 C.F.R. § 2590.606-4(b)(4)(vi). Am. 

Compl., ¶¶ 86, 109. The Regulation states that a notice shall contain, “An explanation of the 

consequences of failing to elect or waiving continuation coverage, including an explanation that a 

qualified beneficiary's decision whether to elect continuation coverage will affect the future rights 

of qualified beneficiaries....” 29 C.F.R. § 2590.606-4(b)(4)(vi). However, the 2020 COBRA 

Notice does contain an explanation that the participant will lose their right to elect coverage if they 

do not elect the continuation coverage. 2020 COBRA Notice (Ex. 2) at 10. The Notice also 

explains how to revoke a waiver before the original election deadline, as required by the regulation. 

Id. Additionally, Plaintiff’s own argument is undermined by the Model Notice, which itself does 

not enumerate all information required in § 2590.606-4(b)(4)(vi). Although Plaintiff states that 

ABLAC did not adhere to the DOL Model Election Notice, ABLAC used either the same or similar 

language in the DOL Model Notice as it pertains to § 2590.606-4(b)(4)(vi) in the 2020 COBRA 

Notice. See Ex. 4 at 3-4. Additionally, ABLAC added information required by the regulation that 

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is not included in the Model Election Notice with regards to how a qualified beneficiary’s decision 

whether to elect continuation coverage will affect the future rights of qualified beneficiaries. See

2020 COBRA Notice (Ex. 2) at 4; see also Ex. 4 at 4. Thus, the 2020 COBRA Notice does contain 

all required information, and Count V fails to state a claim upon which relief can be granted. 

D. The Notice Is Written In a Manner Calculated To Be Understood By the 

Average Participant. 

In Count VI of the First Amended Complaint, Plaintiff alleges that ABLAC failed to 

provide the COBRA Notice written in a manner calculated to be understood by the average plan 

participant. Am. Compl., ¶ 112. Plaintiff states that ABLAC failed to adequately explain the 

procedures for electing coverage, how to enroll, where to send payment, the consequences for 

untimely payments, failure to include explanatory information, and failure to identify who the 

COBRA Administrator is/was. Id. These assertions are conclusory and are refuted by the 2020 

COBRA Notice itself, which largely tracks the Model Notice and even adds additional information 

not included in the Model Notice as required by the regulation. See Ex. 4. 

Whether a defendant’s COBRA notification “complies with the law” turns on “whether the 

Notice is understandable by an average plan participant.” Vazquez v. Marriott Int'l., Inc., 2018 WL 

3860217, at *4 (M.D. Fla. Aug. 7, 2018) (citation omitted). “This requirement has been interpreted 

as ‘an objective standard rather than requiring an inquiry into the subjective perception of the 

individual [plan] participants.’” Id. While the Eleventh Circuit has not specifically addressed the 

regulatory requirement outlined in section 2590.606-4(b)(4), it has discussed that “[f]ollowing an 

employee’s termination, 29 U.S.C. § 1166(a)(4)(A) requires plan administrators to notify the 

former employee of their right to receive continuation coverage.” Scott, 295 F.3d at 1230. “The 

notice must be sufficient to permit the discharged employee to make an informed decision whether 

to elect coverage.” Id. (citing Meadows v. Cagle's, Inc., 954 F.2d 686, 692 (11th Cir. 1992)). 

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In the instant case, ABLAC has included all information required by the regulation, 

including the procedures for electing coverage, how to enroll, where to send payments, the 

consequences for untimely payments, and all other explanatory information. While Plaintiff 

alleges in the First Amended Complaint that ABLAC does not identify who the COBRA 

Administrator is (Am. Compl., ¶ 112), this is not required by the regulation. See Carter, 2020 WL 

7334504, at 5–7 (finding that the regulation’s plain language does not support a reading that a 

COBRA election notice must include information pertaining to the “Plan Administrator”). 

COBRA notices must include “the name, address and telephone number of the party responsible 

under the plan for the administration of continuation coverage benefits.” § 2590.606-4(b)(4)(i). 

Here, the “party responsible for administration of the plan’s continuation coverage benefits” is 

WageWorks, Inc. 2020 COBRA Notice (Ex. 2) at 1. Nevertheless, ABLAC mentions the Plan 

Administrator by name, Assurant, Inc., multiple times in the 2020 COBRA Notice. Id. at 1, 2, 3, 

5, 8, 9, 10, 13, and 14. The Notice includes all information required by the regulation for 

WageWorks. Id. at 9. In sum, because the 2020 COBRA Notice is written in a manner intended 

to be understood by the average participant and contains the required regulatory information, 

Plaintiff has failed to state a claim in Count VI upon which relief can be granted. 

CONCLUSION 

For the foregoing reasons, ABLAC respectfully requests that the Court grant the dismissal 

of Counts III through VI with prejudice, and grant such other relief as the Court deems just and 

proper. 

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Dated: December 29, 2022 Respectfully submitted,

/s/ Irma Reboso Solares 

Irma Reboso Solares (FL Bar No. 797073) 

isolares@carltonfields.com 

Sean W. Hughes (FL Bar No. 1038714) 

shughes@carltonfields.com 

CARLTON FIELDS, P.A. 

2 MiamiCentral, Suite 1200 

700 NW 1st Avenue 

Miami, Florida 33136 

Telephone: (305) 530-0050 

Facsimile: (305) 530-0055 

Attorneys for Defendant American Bankers Life 

Assurance Company of Florida 

Case 1:22-cv-23584-DPG Document 30 Entered on FLSD Docket 12/29/2022 Page 21 of 22
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CERTIFICATE OF SERVICE 

I hereby certify that on this 29th day of December, 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF, which will generate a Notice of Electronic 

Filing to all parties in the case who are registered users of the CM/ECF system. 

/s/ Irma Reboso Solares 

131550355 

Case 1:22-cv-23584-DPG Document 30 Entered on FLSD Docket 12/29/2022 Page 22 of 22