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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE E. LUCKENBAUGH, :

et al., : Case No. 4:06-CV-1919

:

Plaintiffs, : (Judge Jones)

:

v. :

:

EBENX, et al., :

:

Defendants. :

MEMORANDUM

March 19, 2007

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Pending before this Court are three Motions seeking, inter alia, dismissal of

Plaintiffs’ Complaint in the above-captioned action. On October 3, 2006,

Defendants United Healthcare Service Corporation (“United Healthcare”) and

Frito-Lay, Inc. (“Frito-Lay”) filed a Motion to Dismiss Plaintiffs’ Complaint, or, in

the Alternative, to Stay the Proceedings. (Rec. Doc. 4). On October 4, 2006,

Defendant eBenx, Inc. (“eBenx”) filed a Motion to Dismiss Plaintiffs’ Complaint. 

(Rec. Doc. 7). On same date, Defendant HealthAmerica Pennsylvania, Inc.

(“HealthAmerica”) filed a Motion to Dismiss, or, in the Alternative, to Strike the

Jury Demand and Stay the Proceedings. (Rec. Doc. 9). For the reasons that

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follow, Defendants’ Motions to Dismiss the Complaint will be granted in the

manner specified herein. 

PROCEDURAL HISTORY:

On August 29, 2006, Plaintiff George Luckenbaugh, who has brought this

action on behalf of himself and his minor daughter, Plaintiff Tonya Luckenbaugh,

instituted the instant action in the Court of Common Pleas of York County. (Rec.

Doc. 1-2). On September 27, 2006, Defendants filed a Notice of Removal to this

Court pursuant to 28 U.S.C. § 1441. (Rec. Doc. 1-1). 

Subsequently, on October 3, 2006, and October 4, 2006, each Defendant

filed a Motion seeking, inter alia, dismissal of Plaintiffs’ Complaint on the grounds

that, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, it fails to

state a claim upon which relief may be granted. Specifically, United Healthcare

and Frito-Lay filed a Motion to Dismiss Plaintiffs’ Complaint, or, in the

Alternative, to Stay the Proceedings (doc. 4); eBenx filed a Motion to Dismiss

Plaintiffs’ Complaint (doc. 7); and HealthAmerica filed a Motion to Dismiss

Plaintiffs’ Complaint, or, in the Alternative, to Strike the Jury Demand and Stay

the Proceedings (doc. 9). 

As all three Motions have been briefed, they are ripe for disposition. 

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 Plaintiffs’ Complaint actually alleges that “Defendant began working for Defendant . . .

.” (Rec. Doc. 1-2, ¶ 7). However, context demonstrates that Plaintiffs meant to allege that

Plaintiff George Luckenbaugh began working, and we have assumed as much. 

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FACTUAL BACKGROUND:

In light of the standard of review for motions to dismiss, we accept as true

all of Plaintiffs’ averments in the Complaint. Accordingly, the following factual

background is taken therefrom. 

On December 4, 1996, Plaintiff George Luckenbaugh (“Mr. Luckenbaugh”)1

began working for Defendant Frito-Lay. (Rec. Doc. 1-2, ¶ 7). Thereafter, he

became eligible for medical insurance coverage through Frito-Lay as a result of his

employment. (Rec. Doc. 1-2, ¶ 7). 

On March 23, 2001, Mr. Luckenbaugh was thrown from a horse while riding

and sustained physical injuries. (Rec. Doc. 1-2, ¶ 8). As a result of his injuries,

Mr. Luckenbaugh was first placed on light-duty work for Frito-Lay, from

approximately March 23, 2001 until June 11, 2001. (Rec. Doc. 1-2, ¶ 9). 

However, from June 11, 2001 until December 17, 2001, he was placed on shortterm disability, and from December 17, 2001 until at least the filing of the

Complaint, he has been on long-term disability. (Rec. Doc. 1-2, ¶¶ 10-11). 

Prior to and through December 17, 2001, Mr. Luckenbaugh was provided

health insurance coverage through HealthAmerica as a result of his employment by

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 As at least one Defendant has noted, although Plaintiffs’ Complaint avers that such

notice was dated April 26, 2003, that appears to have been a typographical error, and we have

assumed asmuch. 

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Frito-Lay. (Rec. Doc. 1-2, ¶ 12). Mr. Luckenbaugh’s health insurance was in the

form of an employer-sponsored HMO that paid all of his qualifying medical

expenses. (Rec. Doc. 1-2, ¶ 13). 

However, beginning on or about December 17, 2001, Mr. Luckenbaugh had

$14.75 deducted from his semi-monthly disability benefits to pay for basic medical

coverage from United Healthcare. (Rec. Doc. 1-2, ¶ 20). 

On or about March 18, 2002, eBenx notified Mr. Luckenbaugh that he had

the opportunity to make an election, under the Comprehensive Omnibus Budget

Reconciliation Act of 1986 (“COBRA”), to continue his vision insurance coverage

for himself and his minor daughter, Tonya (“Ms. Luckenbaugh”). (Rec. Doc. 1-2,

¶ 14). Accordingly, on March 22, 2002, Mr. Luckenbaugh mailed eBenx notice of

his intention to continue his vision insurance coverage. (Rec. Doc. 1-2, ¶ 15). 

Thereafter, on or about March 29, 2002, HealthAmerica provided Mr.

Luckenbaugh notice that his health insurance coverage had terminated on

December 17, 2001, the date on which he was placed on long-term disability. 

(Rec. Doc. 1-2, ¶ 16). Thus, by notice dated April 26, 2002,2

 eBenx provided Mr.

Luckenbaugh the required COBRA notice that he could elect continuing health

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 The Complaint does not specify which insurance carrier terminated coverage, but it

appears that Plaintiffs are referring to HealthAmerica’s coverage. 

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insurance, through HealthAmerica, prior to June 24, 2002. (Rec. Doc. 1-2, ¶ 17). 

Again, Mr. Luckenbaugh elected to continue his coverage: on or about May 9,

2002, Mr. Luckenbaugh mailed notice of his intention to continue his health

insurance coverage. (Rec. Doc. 1-2, ¶ 18). 

By notice dated September 17, 2002, eBenx notified Mr. Luckenbaugh that

his health insurance coverage3

 had terminated as of March 6, 2002. (Rec. Doc. 1-

2, ¶ 19). 

To date, both HealthAmerica and United Healthcare have denied medical

coverage to Plaintiffs. (Rec. Doc. 1-2, ¶ 21). Additionally, Plaintiffs allege that at

all times relevant, eBenx was “administering employee health care benefit

coverage on behalf of Frito-Lay;” HealthAmerica and United Healthcare were

“medical insurance carriers providing health care benefit coverage to employees of

Frito-Lay;” and Plaintiff, “as an employee of Defendant Frito-Lay, was a

beneficiary of Defendant Frito-Lay’s contractual relationships with other

Defendants and stands in privity to such relationships.” (Rec. Doc. 1-2, ¶¶ 22-24). 

Finally, Plaintiffs allege that they “engaged medical providers and incurred

medical expenses due to treatment and services provided by such providers.” (Rec.

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Doc. 1-2, ¶ 25). 

STANDARD OF REVIEW:

In considering a motion to dismiss, a court must accept the veracity of a

plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in

considering a motion to dismiss based on a failure to state a claim argument, a

court should “not inquire whether the plaintiffs will ultimately prevail, only

whether they are entitled to offer evidence to support their claims.” Furthermore,

“a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). 

DISCUSSION:

Initially, we note that we will dismiss with prejudice Counts I, II, III, IV, and

V of Plaintiffs’ Complaint, all causes of action grounded in Pennsylvania state law,

because Defendants have so persuasively argued that they are preempted by the

Employee Retirement Income Security Act (“ERISA”) that Plaintiffs have

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 Indeed, the heading relating to this issue in Plaintiffs’ Brief in Opposition to all of

Defendants’ Motions reads: “PLAINTIFF AGREES THAT HIS STATE LAW CLAIMS ARE

PREEMPTED BY ERISA.” (Rec. Doc. 17 at 10). 

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 We begin our consideration of Count VI with this argument for two reasons. First, our

disposition of this issue may end our analysis of the pending Motions. Second, even

notwithstanding the instant issue, Plaintiffs’ broad invocation of ERISA prevents a thorough

analysis of at least some remaining arguments, e.g., eBenx’s argument that Count VI should be

dismissed as to it with prejudice. 

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conceded as much.4 

Accordingly, we are left to consider the only remaining Count in Plaintiffs’

Complaint, Count VI, in which Plaintiffs seek relief pursuant to ERISA. We note

that Plaintiffs have invoked the provisions of ERISA broadly, referring only to 29

U.S.C. 1132, et seq. 

All Defendants seek dismissal of Count VI. We begin consideration as to

this Count’s viability with United Healthcare and Frito-Lay’s argument that Count

VI should be dismissed without prejudice because of Plaintiffs’ failure to exhaust

their administrative remedies under the employee welfare benefit plan offered

through Frito-Lay (“the Plan”).5

 (Rec. Doc. 5 at 11- 13). 

Plaintiffs’ Brief in Opposition to all Defendants’ Motions (doc. 17) concedes

that “courts require exhaustion of administrative remedies prior to hearing an

action for a denial of ERISA benefits. Harrow v. Prudential Ins. Co. of America,

279 F.3d 244, 252 (3d Cir. 2002).” However, Plaintiffs also accurately note that at

least two exceptions to this exhaustion requirement exist. The two exceptions that

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 United Healthcare and Frito-Lay’s Reply Brief concedes that these exceptions to the

exhaustion requirement exist. (Rec. Doc. 24 at 2). 

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 We note that the posture in which we find ourselves, disposing of Motions to Dismiss

made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, prevents us from

considering the Declaration of Mr. Luckenbaugh and the attached Exhibits at this time. See,

e.g., Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994) (noting that

“[i]n determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to

the facts alleged in the complaint and its attachments without reference to other parts of the

record.”). Although we are cognizant that we can elect to convert motions to dismiss into

motions for summary judgment pursuant to Rule 12(b)(6), to do so at this juncture and in these

circumstances would be improvident. Thus, we did not announce our intention to do so, and,

consequently, we will not convert the instant Motions on this limited record. 

We also note that for the same reasons, we have not considered the Exhibits attached to

any of Defendants’ Motions or supporting briefs either. (See Rec. Docs. 4, 21). 

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Plaintiffs attempt to invoke are: futility and denial of meaningful access to

administrative procedures.6

 See, e.g., Harrow, 279 F.3d at 249-50 (describing the

futility exception); Lucas v. Warner & Swasey Co., 475 F. Supp. 1071, 1074 (E.D.

Pa. 1979) (outlining what a plaintiff must show to avail him- or herself of the

denial of meaningful access exception). 

United Healthcare and Frito-Lay accurately indicate that Plaintiffs’

Complaint is bereft of any allegations that: 1) Plaintiffs submitted all of their

outstanding claims for benefits allegedly due; or 2) Plaintiffs exhausted the Plan’s

internal remedies for appealing the denial of such claims. (Rec. Docs. 5 at 11; 1-

2). Indeed, Plaintiffs’ subsequent submission of a Declaration by Mr.

Luckenbaugh and other Exhibits (doc. 20),7

 and their reliance thereupon in their

opposing brief (doc. 17), necessarily indicate that their Complaint lacks critical

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 Although we express no opinion as to the running of ERISA’s statute of limitations, see

29 U.S.C. § 1113, as it applies to the facts contained herein, Plaintiffs have not argued that it

would prevent the re-filing of their claim(s) in their opposing brief. (Rec. Doc. 17). Thus, at this

juncture, we fail to see how the dismissal without prejudice of Count VI precludes Plaintiffs

from re-filing after exhausting their administrative remedies. 

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allegations demonstrating either that the exhaustion requirement has been fulfilled

or that at least one of its exceptions applies. Indeed, had Plaintiffs felt secure that

their Complaint contained sufficient averments as to this issue, we suspect that

they would not have supplemented the record in this fashion.

In sum, the absent averments in Plaintiffs’ Complaint, confirmed by

Plaintiffs’ later attempts to supplement the record, lead us to conclude that

Plaintiffs have filed this Complaint prematurely. Because Plaintiffs filed their

Complaint prior to the conclusion of all administrative proceedings related hereto,

it is necessarily devoid of any allegations that the administrative remedy

exhaustion requirement applicable to all ERISA actions has been satisfied, or any

allegations that an exception thereto applies. Accordingly, we hold that Count VI

of Plaintiffs’ Complaint will be dismissed without prejudice. Should the

conclusion of these proceedings necessitate the re-filing of Plaintiffs’ ERISA

claim(s), Plaintiffs can do so.8

 

Our holding that Count VI should be dismissed without prejudice moots all

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other requests for relief made in Defendants’ Motions, and, as such, they will be

denied as moot.

An appropriate Order shall issue. 

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