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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TAMARA LEWIS,

Plaintiff,

v.

GREGORY FISHER, DDS, and

KATHLEEN ANN STOCKMAN, husband

and wife, REGENCE BLUESHIELD, a

Washington nonprofit corporation,

GREGORY R. FISHER, DDS EMPLOYEE

BENEFIT AND WELFARE PLAN,

Defendants.

Case No. C06-5352RJB

ORDER

This matter comes before the Court on Plaintiff’s Motion for Partial Summary Judgment (Dkt. 27),

Regence Blueshield’s Cross Motion for Summary Judgment (Dkt. 28), and Plaintiff’s Motion to Amend

Complaint (Dkt. 38). The Court has considered the pleadings filed in support of and in opposition to the

motions and the remainder of the file herein.

I. FACTS AND PROCEDURE

This case arises out of Plaintiff’s claim for benefits and other damages brought under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. In Plaintiff’s Third Amended

Complaint, Plaintiff alleges the following: Plaintiff was employed and worked as a dental assistant for Dr.

Lewis Fisher (“Dr. Fisher”), and during her employment, Dr. Fisher provided medical benefits to her and

the rest of his staff through a group health insurance policy issued by Regence Blueshield (“Regence”). 

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Dkt. 36, at 3. Plaintiff left work due to severe medical problems and underwent several medical

procedures in October, November, and December of 2005. Id., at 4. Prior to receiving the services,

Plaintiff contacted Dr. Fisher to confirm that insurance was in place. Id. Dr. Fisher confirmed that it was

and that Plaintiff was covered by the plan, even though she was terminated because of her medical

condition. Id. Dr. Fisher stated that he had submitted a form on behalf of Plaintiff to obtain a six month

extension of the medical insurance policy. Id.

Plaintiff further alleges that prior to her termination, in August of 2004, Dr. Fisher was notified by

Regence that it was conducting an audit of his company’s eligibility. Id. Plaintiff asserts that Dr. Fisher

failed to notify her of the audit. Id. In December of 2005, Regence informed Dr. Fisher that it would not

be renewing the medical insurance policy for his employees retroactively to October 1, 2004. Id. Plaintiff

asserts that Regence, however, did not invalidate or cancel the policy that was in effect when she was

granted a six month extension of benefits. Id. In January of 2005, Plaintiff alleges that she received a

notice of non-coverage from Regence and Regence denied her claims for medical services. Id., at 4-5. 

On October 31, 2005, Plaintiff filed a Complaint for Breach of Contract, Promissory Estoppel, and

Negligent Misrepresentation in Washington State Superior Court for Pierce County. Dkt. 1-1, at 13. 

Plaintiff originally named Gregory Fisher, DDS, and Kathleen Ann Stockman, husband and wife, as

defendants. Id. On May 18, 2006, the parties stipulated to the amendment of the Complaint to add

Regence as a defendant. Dkt. 1-2, at 5. On June 23, 2006, Defendant Regence removed the action to this

Court pursuant to 28 U.S.C. § 1441. Dkt. 1-1, at 1. On October 10, 2006, the parties stipulated to the

entry of a Second Amended Complaint to add claims under ERISA against Regence. Dkt. 12, at 1. On

November 3, 2006, Plaintiff filed a Motion to Amend to Join Additional Party, seeking to join “Gregory R.

Fisher, DDS Employee Benefit and Welfare Plan” (“the Plan”). Dkt. 16. On December 5, 2006, the Court

entered an Order joining the Plan as a party. Dkt. 18. On April 23, 2007, Plaintiff filed a “Third Amended

Complaint (filed pursuant to Court Order dated December 1, 2006).” Dkt. 36. 

On March 15, 2007, Plaintiff filed a Motion for Partial Summary Judgment. Dkt. 27. Plaintiff

noted her Motion for Partial Summary Judgement for consideration on April 6, 2007. Id. Defendant

Regence filed a Response and Cross Motion for Summary Judgment on April 2, 2007. Dkt. 28. 

Regence’s Cross Motion for Summary Judgment was noted for consideration on April 27, 2007. Id. On

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April 5, 2007, Plaintiff filed a Motion for Continuance Pursuant to Fed. R. Civ. P. 56(f). Dkt. 32. The

Court granted Plaintiff’s requested and renoted the motion for consideration. Dkt. 35. 

On March 23, 2007, Plaintiff filed a Motion to Amend Complaint and submitted a proposed Fourth

Amended Complaint. Dkt. 38. In this motion, Plaintiff “recognizes that Regence is not a proper party to a

claim for benefits and that the Plan and Dr. Fisher as the Plan Administrator[] are properly subject to a

claim for benefits . . . . [And,] Plaintiff consequently seeks to amend her Complaint so that the facts . . . are

properly pled . . . .” Id., at 2.

Currently pending before the Court are three motions: Plaintiff’s Motion for Partial Summary

Judgment (Dkt. 27), Regence Blueshield’s Cross Motion for Summary Judgment (Dkt. 28), and Plaintiff’s

Motion to Amend Complaint (Dkt. 38). Plaintiff originally asked this Court to grant partial summary

judgment against Defendant Regence because Plaintiff, as a matter of law, is entitled to benefits under the

group policy. Dkt. 27, at 6. In its Cross Motion for Summary Judgment, Regence argues, among other

things, that it is not a proper party because it is not the Plan Administrator as defined under ERISA. Dkt.

28, at 1. Plaintiff acknowledges in her Motion to Amend Complaint (Dkt. 38, at 2) and her Response to

Defendant Regence’s Cross-Motion for Summary Judgment (Dkt. 37) that Regence is not a proper party,

and she asks the Court to allow her to amend her Complaint to reflect that fact. No party objects to

Plaintiff’s Motion to Amend Complaint.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving

party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient

showing on an essential element of a claim in the case on which the nonmoving party has the burden of

proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where

the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

present specific, significant probative evidence, not simply “some metaphysical doubt.”). See also Fed. R.

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Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence

supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the

truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must

consider the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a

preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809

F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only

when the facts specifically attested by that party contradict facts specifically attested by the moving party.

The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the

hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630

(relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and

missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

B. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND

DEFENDANT’S MOTION FOR CROSS SUMMARY JUDGMENT

Plaintiff “concedes” that Regence, as the claims administrator, is not a proper party to a claim for

benefits under ERISA. Dkt. 37, at 3. Plaintiff admits that the cases of Ford v. MCI Communications

Corp. Health and Welfare Plan, 399 F.3d 1076 (9th Cir. 2005), and Warner v. Standard Ins. Co., No.

C06-5549 RJB, 2007 U.S. Dist. LEXIS 3442 (January 17, 2007) are controlling. ERISA authorizes

actions to recover benefits against the plan as an entity and against the plan’s administrator. Ford, 399

F.3d 1076, 1082 (2005) (citations omitted). Because Plaintiff and Regence agree that Regence is not the

Plan administrator, and because no party objects, Regence should be dismissed. Under the circumstances,

consideration of the parties’ other arguments is not necessary. Therefore, the Court should deny Plaintiff’s

Motion for Partial Summary Judgment (Dkt. 27) and grant Regence’s Cross Motion for Summary

Judgment (Dkt. 28).

C. FEDERAL RULE OF CIVIL PROCEDURE 15(a) STANDARD

After a party has amended a pleading once as a matter of course, it may only amend further after

obtaining leave of the court or by consent of the adverse parties. Fed. R. Civ. P. 15(a). Generally, “leave

shall be freely given when justice so requires.” Id. This policy is to be applied with “extreme liberality.” 

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Eminince Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In

deciding whether to allow an amendment, a district court should consider undue delay, bad faith or dilatory

motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party, and futility. Foman v. Davis, 371 U.S. 178, 182 (1962). Not all of the factors merit equal

weight, and prejudice to the opposing party carries the greatest weight. Eminence, 316 F.3d at 1051. A

simple denial of leave to amend without explanation is subject to reversal. Id.

D. PLAINTIFF’S MOTION TO AMEND COMPLAINT

Plaintiff seeks to amend her Complaint so that the facts are “properly plead as violations of ERISA

against the Plan Sponsor and Plan Administrator, Dr. Gregory Fisher, as well as the Plan itself.” Dkt. 38,

at 2. Plaintiff argues that amendment is appropriate because there is “no evidence that Plaintiff has

engaged in undue delay, bad faith or that she has a dilatory motive.” Id., at 3. Further, Plaintiff argues

that, while the amended complaint will be “admittedly” late, Dr. Fisher faces little or no prejudice because

he filed his Answer to the Second Amended Complaint only last month. Id. Plaintiff argues that Dr. Fisher

“has been identified in the contract documents with Regence as the Plan Administrator and is properly the

party against whom Plaintiff has a claim for benefits under ERISA.” Id. Last, Plaintiff argues that the

motion should be granted because the claims Plaintiff seeks to add depend on the “same set of facts” as the

previous claims and therefore “the defendants are not required to radically change their litigation strategy.” 

Id., at 3-4.

Although no party objects to Plaintiff’s Motion to Amend Complaint, the motion should not be

granted. Plaintiff submitted a Proposed Fourth Amended Complaint along with her motion. Dkt. 38-2, at

5. The caption and other portions of Plaintiff’s proposed complaint do not accurately reflect the changes

Plaintiff purports to wish to make in her Motion to Amend Complaint. See Dkts. 38-1 and 38-2. Most

obviously, the caption of the proposed complaint appears to indicate that the party, “Gregory R. Fisher,

DDS, Employee Benefit and Welfare Plan,” has been dismissed from the case. Dkt. 38-2, at 5. Plaintiff at

no time indicated in her motion that she wished to dismiss the Plan from the case. The caption also

appears to indicate that Regence remains a party, even though Plaintiff has conceded that Regence should

be dismissed. Id.; Dkt. 37, at 3. Therefore, Plaintiff’s Motion to Amend Complaint (Dkt. 38) should be

denied without prejudice.

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Hopefully, Plaintiff can redraft a Fourth Amended Complaint and the parties will stipulate to an

order allowing the amendment.

 III. ORDER

Therefore, it is hereby ORDERED that:

(1) Plaintiff’s Motion for Partial Summary Judgment (Dkt. 27) is DENIED;

(2) Regence Blueshield’s Cross Motion for Summary Judgment (Dkt. 28) is GRANTED and

Regence Blueshield is DISMISSED from the action;

(4) Plaintiff’s Motion to Amend Complaint (Dkt. 38) is DENIED WITHOUT PREJUDICE;

and 

(2) The Clerk is directed to send uncertified copies of this Order to all counsel of record and to

any party appearing pro se at said party’s last known address. 

DATED this 9th day of May, 2007.

AROBERT J. BRYAN

United States District Judge

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