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 governed 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 serve 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 23rd 

day of December, two thousand fourteen. 

PRESENT: JOSÉ A. CABRANES, 

 RAYMOND J. LOHIER, JR., 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges. 

 

JANE ROE, individually and on the behalf of all others 

similarly situated, JANE DOE, individually and on the 

behalf of all others similarly situated, 

Plaintiffs-Appellants, 

v. No. 14-1759-cv 

EMPIRE BLUE CROSS BLUE SHIELD, 

ST. JOSEPH’S MEDICAL CENTER, 

Defendants-Appellees. 

 

FOR PLAINTIFFS-APPELLANTS: JEFFREY M. NORTON (Randolph M. 

McLaughlin, on the brief), Newman Ferrara 

LLP, New York, NY. 

FOR EMPIRE BLUE CROSS BLUE SHIELD: ROBERT A. SCHER (Douglas Heffer, Michael 

J. Tuteur, on the brief), Foley & Lardner LLP, 

New York, NY. 
2 

FOR ST. JOSEPH’S MEDICAL CENTER: ARTHUR J. ROBB, 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 WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 

Plaintiffs Jane Roe and Jane Doe appeal from 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 Retirement 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 law, we conclude that the District Court 

properly dismissed plaintiffs’ Section 510 claim. Plaintiffs 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 properly 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 under 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. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk