14-1759-cv Roe v. Empire Blue Cross Blue Shield

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is govern ed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serv e a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23 rd day of December, two thousand fourteen.
PRESENT: J OSÉ A. C ABRANES , R AYMOND J. L OHIER , J R ., C HRISTOPHER F. D RONEY , Circuit Judges

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J ANE R OE , individually and on the behalf of all others similarly situated, J ANE D OE , individually and on the behalf of all others similarly situated,
Plaintiffs-Appellants
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v. No. 14-1759-cv

E MPIRE B LUE C ROSS B LUE S HIELD , S T

. J OSEPH ’ S M EDICAL C ENTER , Defendants-Appellees

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FOR PLAINTIFFS-APPELLANTS: J EFFREY M. N ORTON (Randolph M. McLaughlin, on the brief ), Newman Ferrara LLP, New York, NY.

FOR EMPIRE BLUE CROSS BLUE SHIELD: R OBERT A. S CHER (Douglas Heffer, Michael J. Tuteur, on the brief ), Foley & Lardner LLP, New York, NY.2 FOR ST. JOSEPH’S MEDICAL CENTER: A RTHUR J. R OBB , Clifton Budd & DeMaria, LLP, New York, NY.
Appeal from a May 2, 2014 judgment of the United States District Court for the Southern District of New York (Nelson S. Román, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED

. Plaintiffs Jane Roe and Jane Doe appeal fr om the District Court’s May 2, 2014 judgment dismissing their claims for discrimination and breach of fiduciary duty pursuant to Sections 510 and 404, respectively, of the Employment Retireme nt Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1140, 1104, and denying plaintiffs’ motion for a preliminary injunction. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Upon de novo review of the record and relevant la w, we conclude that the District Court properly dismissed plaintiffs’ Section 510 claim. Plaint iffs have failed to adequately allege any right to which they are entitled or may become entitled under the plan at issue with respect to which defendants discriminated against them or with which defendants otherwise interfered. See 29 U.S.C. § 1140.

We also conclude that the District Court pr operly dismissed plaintiffs’ Section 404 claim. Plaintiffs have not adequately alleged that defendants were acting in a fiduciary capacity or that they breached any fiduciary duty under ERISA. See 29 U.S.C. § 1002(21)(A). Accordingly, the District Court also properly denied plaintiffs’ motion for a preliminary injunction.

As the District Court held, this decision does not address whether the plan exclusion is constitutional or otherwise lawful un der any other federal or state laws.

CONCLUSION

We have considered all of the arguments raised by plaintiffs on appeal and find them to be without merit. For the reasons stated above, the District Court’s May 2, 2014 judgment is AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk