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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

TRACELEY BOOTLE, CASE No.: 1:22-cv-23584-DPG

Plaintiff,

v.

AMERICAN BANKERS LIFE

ASSURANCE COMPANY OF 

FLORIDA,

Defendant.

_______________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO 

DISMISS PLAINTIFF’S AMENDED COMPLAINT1

The Plaintiff, TRACELEY BOOTLE, (hereinafter “Plaintiff” or “Mrs. Bootle”), by and 

through the undersigned counsel, and pursuant to Rule 12, Federal Rules of Civil Procedure, 

Responds to Defendant, AMERICAN BANKERS LIFE ASSURANCE COMPANY OF 

FLORIDA’S, (hereinafter “Defendant” or “ABLAC”), Motion to Dismiss (the “Motion”). Plaintiff 

states the following in support thereof:

I. INTRODUCTION

Mrs. Bootle filed her six (6) count Complaint on or about July 26, 2022, alleging; (1) Age 

Discrimination under the Florida Civil Rights Act of 1992, §760.01, et. seq., Fla. Stat.; (2) 

Failure to Pay Wages under the Fair Labor Standards Act of 1938, 29 USC § 203, et seq., (3) 

Violation of 29 U.S.C. § 1166(a) and 29 C.F.R. §2590.606-4; (4) Violation of 29 C.F.R. 

§2590.606-4(b)(4)(xii) – Failure to provide the address where payments should be sent; (5) 

Violation of 29 C.F.R. §2590.606-4(b)(4)(vi) – Failure to include explanatory information; and 

1 Defendant moves to dismiss only Counts No. III – VI of Plaintiff’s Amended Complaint and filed its Answer and Affirmative 

Defenses as to Counts No. I – II of the Plaintiff’s Complaint contemporaneously with its initial Motion to Dismiss. Therefore, 

Counts No. I – II of the Plaintiff’s Complaint survive Defendant’s Motion to Dismiss.

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(6) (Violation of 29 C.F.R. §2590.606-4(b)(4) –Failure to provide COBRA notice written in a 

manner calculated “to be understood by the average plan participant.”

Defendant moves to dismiss Plaintiff’s COBRA claims as raised in Counts No. III – VI of 

the Plaintiff’s Amended Complaint, but for the reasons outlined in greater detail below, the 

Defendant’s argument fails as a matter of law and fact. 

Defendant initiates its Motion to Dismiss with a section inappropriately titled 

“BACKGROUND AND RELEVANT FACTS.” (See D.E. No. 30; Def.’s Mot. Dismiss, p. 3). 

Here Defendant inappropriately insertsits own set of facts, in an attempt to obfuscate the Plaintiff’s 

factual allegations as raised in the Amended Complaint. (See Id. at p. 3) (“ . . . 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.”). The Defendant proceeds to 

attach as an exhibit the alleged “2020 COBRA NOTICE.” (D.E. No. 30-2; Def.’s Mot. Dismiss, 

Ex. 1). This document, however, is not an authentic or original Notice, and is certainly not a 

document that was mailed to the Plaintiff on or about February 12, 2020, because the document 

was created on December 29, 2022, at approximately 1:20 p.m. (and only a few hours prior to its 

filing with the Court). (See Below Exhibit A; D.E. 30-2; Properties).

Exhibit A

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Plaintiff further presents affidavit declaring that she at no point received this 2020 

COBRA Notice presented by Defendant as Exhibit No. 2 of its Motion to Dismiss, and to the 

extent Plaintiff received any correspondence she does not recollect any such language. (See Ex. 

C; Pl.’s Aff.). Defendant, then proceeds in reiterating what its alleged Notice reads, and 

emphatically directs the Court’s attention to the section of the Notice containing contact 

information of the alleged benefits administrator, WageWorks, Inc. (See D.E. No. 30, p. 4).

Here, the Defendant is barred from attaching its Notices and they should not be 

considered by this Honorable Court. Defendant claims that this Honorable Court “may consider 

the attached COBRA notices under the incorporation by reference doctrine . . . without 

converting the motion into one for summary judgment . . . .” (D.E. No. 30, p. 4; F.N. 4). These 

notices, however, may not be considered by this Court because they are not “(1) central to 

Plaintiff’s claim;” nor “(2) undisputed.” See Id. quoting Horsley v. Feldt, 304 F.3d 1125, 1134 

(11th Cir. 2002). Defendant claims without prior conferral with Counsel for Plaintiff that the 

Notices are undisputed, which of course is a misrepresentation on this Court as the Plaintiff 

disputes the validity of any such Notice and its authenticity. As explained above, the Notices 

presented by Defendant are neither authentic, nor valid as they are not those which were mailed 

to the Plaintiff by Defendant.

As correctly stated by Defendant, on or about March 11, 2021, Congress enacted the 

American Rescue Plan Act of 2021 (“ARPA”). Defendant attaches its alleged Notice as Exhibit 

No. 3 to its Motion. (D.E. No. 30-3). Plaintiff disputes the validity, admissibility, and 

authenticity of the document and provides that it was produced on December 29, 2022, at 

approximately 1:21 p.m. (almost three years after Defendant would have mailed any such 

document to Plaintiff). 

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Exhibit B

(D.E. 30-3; Properties).

As a result of Defendant’s failure to provide any original or authentic documents Plaintiff 

respectfully requests that any such alleged notices are stricken, including Defendant’s Exhibit 

No. 2 – 3 of Defendant’s Motion. Defendant further claims that the Plaintiff has conflicting 

allegations within her Complaint, however, Plaintiff’s complaint is very clear. (See Def.’s Mot 

Dismiss p. 6). As further explained in Plaintiff’s Declaration, (“Exhibit C”), the Plaintiff did not 

receive any COBRA Notices or a document that could be considered as such from Defendant or 

any other entity. The Plaintiff further alleges Counts for Deficient Notice and explains that any 

document which she would have received would not have contained the language required by

prescribed by the Secretary of Labor, as Plaintiff would have availed herself of any such Notice 

and COBRA benefits.

II. ARGUMENT AND INCORPORATED MEMORANDUM OF LAW

A. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the 

Court must accept all of the complaint allegations as true, construing them in the light most 

favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading

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need only contain “a short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require 

detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A 

plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678. 

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 

than a sheer possibility that a defendant has acted unlawfully.” Id. “Rule 8 marks a notable and 

generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not 

unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 

556 U.S. at 679. Yet, where the allegations “possess enough heft” to suggest a plausible entitlement 

to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he standard ‘simply calls for 

enough fact to raise a reasonable expectation that discovery will reveal evidence’ of the required 

element,” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citation 

omitted), “[a]nd, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge 

that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” 

Twombly, 550 U.S. at 556 (citation omitted).

B. Defendant’s Motion to Dismiss Should be Denied as to Count No. III - VI because the 

Plaintiff asserts and holds statutory standing under COBRA and ERISA.

Here, Defendant claims that Mrs. Bootle has fallen out statutory standing as a result of 

her failure to initiate the claim for COBRA benefits within eighteen months of the qualifying 

event (Plaintiff’s termination). As a preliminary matter, Defendant raises the issue of standing

with mixed questions of law and fact, which Plaintiff must be allowed to conduct discovery for. 

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Defendant’s argument is premature and should be brought in a separate procedural 

vehicle. Assuming, arguendo, that this Honorable Court finds Defendant’s argument is timely 

raised, the Defendant’s argument that Plaintiff lacks statutory standing still fails because it is an 

erroneous analysis of statutory standing under 29 U.S.C. § 1002(7). 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). A former employee may be considered an ERISA participant. 

See LaRue v. DeWolf, Boberg & Assocs., Inc., 552 U.S. 248, 256 n.6 (2008).

Here it is evident that Plaintiff is a plan “participant” and has appropriately pleaded as 

such. (See D.E. No. 26; Pl.’s Amd. Compl., p. 7, ¶ 40 – 41) (“At all times material Plaintiff was 

a plan participant and eligible to receive benefits under Defendant’s group policy coverage, and 

eligible for continuing coverage under the applicable statutes.”) and (“Plaintiff may once again 

become eligible for such continuing coverage benefits”). Specifically, at all relevant times 

Plaintiff was either an employee of the Defendant or a former employee, which was eligible for 

reemployment by the same. As the Defendant appropriately states; “Eligibility is determined at 

the time that the lawsuit is filed.” Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 304 (6th 

Cir. 2006). At the time of the filing of Plaintiff’s Complaint, Plaintiff is a participant using both 

an ex ante and an ex post approach to interpretation.2

Plaintiff meets the criteria set under the statutory language as she is a former employee 

of ABLAC, that may reasonably be reinstated to her previous position as a result of remedies 

2 Prior to the filing of Plaintiff’s Complaint the Plaintiff filed a Charge of Discrimination with the Equal Employment 

Opportunity Commission, (Charge No.: 510-2020-02011) which allows for remedies upon and if settlement is 

reached, remedies that often include reinstatement. Prior to, and proceeding from, the date of filing of the 

Plaintiff’s Complaint the Plaintiff was eligible to reinstatement/reemployment.

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provided or terms of an agreement with the Defendant resulting from this Civil Action. (See D.E. 

No. 26; Pl.’s Amd. Compl., p. 7, ¶ 42) (“Plaintiff has a colorable claim, that (1) she will prevail 

in this suit for benefits and (2) eligibility requirements will be fulfilled in the future, if not 

fulfilled at this time, as Plaintiff seeks reinstatement to her previous position with all previously 

afforded benefits herein.”). Further, nothing prevents Plaintiff from reapplying and a rehiring 

with Defendant, as the Plaintiff at not point in time was marked as no-rehire by Defendant.

“The structure of COBRA is designed for there to be a temporary gap even when a timely 

COBRA election is made, and then the gap is closed retroactively once the election is made and 

the COBRA premiums are paid.” Jamie Bryant, et al, v. Wal-Mart Stores, Inc., et al., Case 1:16-

cv-24818-JEM, D.E. No. 184, p. 8 (S.D. Fla. 2020) (Internal quotations omitted). Therefore, any 

gap in such coverage is by design, and by no fault of Plaintiff; the gap would be closed 

retroactively. A Defendant remains responsible under the law for any and all deficient 

notifications, regardless of whether it relied on third-party vendors or its own staff to issue the 

notifications. Scott v. Suncoast Beverage Sales, Inc., 295 F.3d 1223, 1230-31 (11th Cir. 2002).

Defendant is responsible for Plaintiff’s claims regardless of any third-party action. Plaintiff further 

states that she is a plan participant, as an employee or former employee, at all times material; “At 

all times material Plaintiff is a “participant” under 29 U.S.C. § 1002(7), because she was an

“employee or former employee of [Defendant]. . . who is or may become eligible to receive a

benefit of any type from an employee benefit plan which covers employees. (See D.E. No. 26;

Pl.’s Amd. Compl., p. 12, ¶ 73). 

Defendant then proceeds to claim that Plaintiff has no reasonable expectation of 

reinstatement, yet this inquiry itself is a question of fact, as Plaintiff may have a reasonable 

expectation for reinstatement absent contract, or covenant to the contrary. Defendant fails to

declare it has determined the Plaintiff ineligible for reinstatement. A factual inquiry on a plaintiff’s

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reasonable expectation of reinstatement is to be determined on a case-by-case basis; Defendant’s 

precedence in Shawley and Eide are therefore inapposite.

Defendant raises on various instances that Plaintiff lacks standing as the result of her falling 

outside the “eighteen month” statutory eligibility period. This same argument, however, has been 

rejected by the Fifth Circuit as recently as 2018. See David Hager v. DBG Partners, Incorporated,

No. 17-11147, D.E. No. 00514631609, (5

th Cir. September 6, 2018) (Overturning the lower court’s 

order of dismissal of plaintiff’s Complaint and finding Plaintiff had standing to sue under ERISA

even though the Plaintiff fell outside of the eighteen-month eligibility period at the time of the 

filing of the Complaint)3. In finding for Plaintiff in Hager, the Fifth Circuit cited to Bixler v. Cent. 

Pa. Teamsters Health & Welfare Fund, for the proposition that a plaintiff who did not obtain 

COBRA coverage because of employer’s alleged misconduct could bring an action under § 

1132(a)(3). See Id. at p. 6, n. 22; citing to Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 

12 F.3d 1292, 1296–300 (3d Cir. 1993). As is the case here, the Plaintiff has been denied her right 

to coverage because of the misconduct of the employer and therefore, her Employer/Defendant is 

estopped from raising this defense. Plaintiff respectfully requests that this Honorable Court Deny

the Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint.

C. Defendant’s Motion to Dismiss should be Denied as to Counts No. III - VI because the 

Plaintiff meets the standing requirements of Article III. 

A Plaintiff “must satisfy three requirements to have standing under Article III of the 

Constitution: (1) ‘injury-in-fact’; (2) ‘a causal connection between the asserted injury-in-fact and 

the challenged action of the defendant’, and (3) ‘that the injury will be redressed by a favorable 

decision.” Houston v. Marod Supermarkets, Inc, 733 F.3d 1323, 1328 (11th Cir. 2013) (citing 

Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)). “These requirements are the irreducible 

3 Plaintiff attaches Hager v. DBG, as Exhibit “D”. 

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minimum required by the Constitution for a plaintiff to proceed in federal court.” Id. (citing 

Shotz, 256 F.3d at 1081). (internal quotation omitted). “The Plaintiff, as the party invoking 

federal jurisdiction, bears the burden of establishing these elements.” Spokeo, Inc. v. Robins, 136 

S.Ct. 1540, 1547, 194 L.ED.2d 635 (2016). The Supreme Court has deemed the injury-in-fact 

requirement the “[f]irst and foremost of standing’s three elements.” Spokeo, 136 S.Ct. at 1547 

(internal citations and quotations omitted).

In Order to establish injury-in-fact, “a plaintiff must show that he or she suffered an 

invasion of a legally protected interest that is concrete and particularized and actual or imminent, 

not conjectural or hypothetical.” Id. at 1548 (internal citations omitted). “For an injury to be 

particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal citations 

and quotations omitted). In addition to alleging that his or her injury is particularized, a Plaintiff 

must also also allege a “de facto,” concrete injury, which “must actually exist.” Id. (Internal 

citations omitted). Following Spokeo, the Eleventh Circuit has defined the injury-in-fact 

requirement to be “an invasion” of a legally protected interest which is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or hypothetical.” Salvors, Inc. v. 

Unidentified Wrecked & Abandoned Vessel, 861 F. 3d 1278, 1290 (11TH Cir. 2017) (Citing Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d.351 (1992)).

Here, the Plaintiff appropriately pleads an “informational injury,” (Defendant’s failure to 

mail notice and deficient notice), and an “economic injury” (lapse in insurance coverage). (See 

D.E. 26; Pl.’s Amd. Compl., p. 13, ¶. 81) (“The deficient COBRA notices at issue in this lawsuit 

both confused and misled Plaintiff. It also caused Plaintiff economic injuries in the form of lost 

health insurance and unpaid medical bills, as well as informational injuries.”); see also Ex. C.

Plaintiff also pleads a causal connection between the Defendant’s failure to Notice and 

Plaintiff’s harm suffered. D.E. 26; Pl.’s Amd. Compl., p. 13, ¶. 74) (“Plaintiff suffered damages 

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and incurred debts and expenses, and other out of pocket expenses as a result of the Defendant’s 

failure to provide adequate and timely notice.”). Plaintiff respectfully requests that this 

Honorable Court Deny the Defendant’s Motion to Dismiss as to Count No. III – VI of the 

Plaintiff’s Amended Complaint. To the extent Plaintiff may have received any Notice, it would 

not resemble language prescribed by the secretary of labor as the Plaintiff does not recollect 

receiving any such Notice that would contain the pertinent language. Defendant claims that 

Plaintiff “may not 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),” yet Plaintiff is free to plead such claims in the alternative. Plaintiff further establishes 

the full notice deficiencies leading to the particularized injury she suffered within her 

declaration. (See Ex. C.)

D. Defendant’s Motion to Dismiss should be Denied as to Counts IV – VI because the 

Defendant’s argument relies on Defendant’s alleged COBRA Notices that are in dispute 

and which Plaintiff never received.

Defendant raises argument in pages 15 – 20 of its Motion, solely grounded on the 

COBRA Notices it attaches as exhibits to its Motion. As previously stated, this Notice is 

disputed, and Defendant fails on any argument stemming from the same. Plaintiff opposes any 

such language presented by Defendant in its attached Notices as Plaintiff disputes the 

authenticity and validity of the same and therefore respectfully requests that this Honorable 

Court Deny Defendant’s Motion as to Subsections III(A) – III(D) of the Defendant’s Motion.

CONCLUSION

The Plaintiff, TRACELEY BOOTLE, respectfully requests that this Court enter an order 

Denying the Defendant’s Motion to Dismiss the Plaintiff’s Amended Complaint as to Counts III -

VI, and provide any other remedy this Court deems just and proper.

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Dated: January 12, 2023 Respectfully submitted, 

/s/ Jorge Costa

Anthony M. Georges-Pierre, Esq.

Florida Bar No.: 0533637

Jorge L. Costa, Esq.

Florida Bar No.: 1031513 

REMER, GEORGES-PIERRE & 

HOOGERWOERD, PLLC

 2745 Ponce de Leon Boulevard

Coral Gables, FL 33134

(305) 416-5000- Telephone

(305) 416-5005- Facsimile

 Email: agp@rgpattorneys.com

Jcosta@rgpattorneys.com

Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 12, 2023, I electronically filed the foregoing 

document with the CM/ECF E-Filing Portal. I also certify that the foregoing document is being 

served this day on all counsel of record or pro se parties, either via electronic transmission of 

Notices generated by the CM/ECF E-Filing Portal or in some other authorized manner for those 

counsel or parties who are not authorized to receive such Notices.

Irma Reboso Solares

Florida Bar No. 797073

isolares@carltonfields.com

CARLTON FIELDS, P.A.

700 NW 1st Avenue, Suite 1200

Miami, Florida 33136

Telephone: (305) 530-0050

Facsimile: (305) 530-0055

Attorney for Defendant American Bankers Life

Assurance Company of Florida

/s/ Jorge Costa

Anthony M. Georges-Pierre, Esq.

Florida Bar No.: 0533637

Jorge L. Costa, Esq.

Florida Bar No.: 1031513

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