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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

__________________________________________

 

GERARDO SUAREZ, 

 Plaintiff, 

 

 v. 

 

THE PRUDENTIAL INSURANCE COMPANY 

OF AMERICA, JAMES E. FUHRMAN, DAVID 

ERLANGER, Ph.D., PSYBAR, LLC, and INTESA 

SAN PAOLO, S.P.A., 

 

Defendants. 

__________________________________________

 

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Hon. Faith S. Hochberg, U.S.D.J. 

Civil Case No. 11-1796 (FSH) (PS)

OPINION & ORDER

Date: December 16, 2011 

 

HOCHBERG, District Judge; 

I. INTRODUCTION 

This matter comes before the Court upon the Motions to dismiss Plaintiff’s Complaint for 

failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) filed 

by: (1) Defendants The Prudential Insurance Company of America (“Prudential”) and James E. 

Fuhrman; and (2) Defendant Intesa Sanpaolo S.P.A. (“Intesa”). The Court has reviewed the 

submissions of the parties and considered the motions on the papers in accordance with Fed. R. 

Civ. P. 78. 

 

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II. BACKGROUND1

 Plaintiff, a former employee of Intesa, brings claims against Prudential for violations of 

the Employee Retirement Income Security Act of 1974 (“ERISA”) and Title III of the Americans 

with Disabilities Act (“ADA”), and against Intesa under the New Jersey Law Against 

Discrimination (“NJLAD”). In his Memorandum of Law in Opposition to Defendants’ Motions 

to Dismiss (“Pl. Br.”), Plaintiff abandoned all of his claims against Defendant James E. 

Fuhrman; his claims against Prudential and Intesa for racial stereotyping and breach of contract; 

his NJLAD claim against Prudential; and his ERISA and ADA claims against Intesa; leaving 

only the claims discussed in this Opinion as asserted against Prudential and Intesa. 

Plaintiff is a participant in a long-term disability insurance plan issued by Prudential to 

Intesa. Plaintiff alleges that he received long-term disability benefit payments from Prudential 

for several years after becoming disabled due to neurological damage caused by accidents 

involving blows to the head. Plaintiff alleges that, after “making a conscious decision to seek 

evidence which would allow it to cease paying [Plaintiff] long-term disability payments,” 

Prudential terminated these payments. Compl. ¶ 8. Plaintiff alleges that Prudential engaged 

Defendant Psybar, LLC (“Psybar”) for this purpose, who in turn engaged Defendant Dr. David 

Erlanger, who found that Plaintiff was malingering and not disabled. Plaintiff alleges that 

Defendants ignored the conclusions of his own doctor. 

 Plaintiff alleges that Prudential conspired to violate his rights under ERISA. Plaintiff 

also alleges that Prudential denied him the benefits of Title III of the ADA by asserting, without 

 

1 The facts set forth here are drawn from Complaint. At the motion to dismiss stage, this Court 

accepts these facts as true. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 

(3d Cir. 1997). The Court notes that it encounters some difficulty in reciting Plaintiff’s 

allegations due to the exceedingly abbreviated and conclusory nature of Plaintiff’s very short 

Complaint. 

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proper scientific basis, that he was malingering, thereby denying him further benefits payments. 

Finally, Plaintiff alleges that Intesa violated his rights under NJLAD. 

III. STANDARD OF REVIEW 

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 127 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating 

. . . a claim requires a complaint with enough factual matter (taken as true) to suggest the 

required element. This does not impose a probability requirement at the pleading stage, but 

instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal 

evidence of the necessary element.”) (internal quotations omitted). 

When considering a motion to dismiss under Iqbal, the Court must conduct a two-part 

analysis. “First, the factual and legal elements of a claim should be separated. The District Court 

must accept all of the complaint's well-pleaded facts as true, but may disregard any legal 

conclusions. Second, a District Court must then determine whether the facts alleged in the 

complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v. 

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations 

omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements 

of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions 

devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949 (internal quotations and 

alterations omitted). 

 

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IV. DISCUSSION 

Plaintiff alleges that Prudential conspired with Intesa and the other Defendants to violate 

his rights under ERISA, but fails to state which of his ERISA rights have been violated. 

Prudential argues that this claim must be dismissed because there is no cause of action under 

ERISA for conspiracy to violate ERISA. See Cipollone v. Univ. of Pa., No. Civ. A. 97-6565, 

1998 WL 47285, at *2 (E.D. Pa. Feb. 3, 1998) (dismissing claim for conspiracy to violate 

ERISA, finding that “[t]here is no indication of any statutory basis for [a conspiracy] claim and 

ERISA itself contains no explicit cause of action for civil conspiracy. Plaintiffs have also failed 

to identify anything in the text or legislative history of ERISA that suggests that Congress 

contemplated that a cause of action should be implied.”); Mose v. U.S. Health Care Sys. of Pa., 

Inc., No. Civ. A. 95-6553, 1996 WL 397465, at *2 (E.D. Pa. Jul. 9, 1996) (same). Plaintiff does 

not respond to this argument, but rather argues that “a fair reading of the complaint is that 

Prudential,” who Plaintiff identifies as the Plan Administrator, “denied Plaintiff benefits by 

preventing him from being given a fair evaluation by its consultant, and by ignoring and 

disparaging the evidence submitted which supported his disability.” Pl. Br. 3. Plaintiff requests 

leave to file an Amended Complaint to properly articulate this claim, should the Court find it 

insufficient. 

The Complaint asserts a cause of action for conspiracy to violate ERISA; a claim that 

Prudential argues does not exist, and one which Plaintiff no longer seems interested in making. 

To the extent that Plaintiff now seeks to assert a claim for denial of benefits under ERISA § 

502(a) (codified at 29 U.S.C. § 1132(a))—the elements of which Plaintiff has not sufficiently 

alleged—the Court will dismiss the conspiracy claim without prejudice to file an Amended 

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Complaint that specifically articulates the cause of action Plaintiff asserts and references the 

ERISA enforcement provision under which he brings this claim. 

Plaintiff’s Complaint alleges that Prudential denied him the benefits of title III of the 

ADA. Title III provides in relevant part: 

No individual shall be discriminated against on the basis of disability in the full 

and equal enjoyment of the goods, services, facilities, privileges, advantages, or 

accommodations of any place of public accommodation by any person who owns, 

leases (or leases to), or operates a place of public accommodation. 

42 U.S.C. § 12182(a). The Complaint fails to allege any facts demonstrating that Plaintiff was 

deprived of any of the rights described above based on his disability in relation to a public 

accommodation. In his opposition brief, Plaintiff attempts to argue that because he visited Dr. 

Erlanger’s offices for an evaluation at the direction of Defendant Psybar, there is a direct nexus 

between the alleged discrimination and a public accommodation. However, Plaintiff does not 

allege that he was deprived of any of the above-listed services at Dr. Erlanger’s office based on 

his disability, nor does he explain how any discrimination suffered there could be attributed to 

Prudential. Because Plaintiff fails to allege any public accommodation-related discrimination in 

connection with the disability benefits provided by Prudential,2

 he does not “plead[] factual 

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

misconduct alleged,” and his ADA claim is, therefore, facially implausible. Iqbal, 129 S.Ct. at 

1949 (citing Twombly, 550 U.S. at 556). Accordingly, this claim will be dismissed. 

 Finally, Plaintiff’s NJLAD claim against Intesa must also be dismissed as the Complaint 

fails to provide any detail regarding any discrimination or adverse employment action suffered at 

hand of Intesa. Therefore, Plaintiff has failed to allege facts that “are sufficient to show that the 

 

2 In Ford v. Schering-Plough Corp., the Third Circuit explained that “disability benefits . . . do 

not qualify as a public accommodation and thus do not fall within the rubric of Title III.” 145 

F.3d 601, 612 (3d Cir. 1998). 

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plaintiff has a plausible claim for relief.” UPMC Shadyside, 578 F.3d at 210-11 (internal 

citations and quotations omitted). Plaintiff’s NJLAD claim must also be dismissed for two 

additional reasons. First, to the extent that Plaintiff bases his NJLAD claim against Intesa on 

Prudential’s termination of his benefits, this state law claim is preempted by ERISA. See Wood 

v. Prudential Ins. Co. of America, 207 F.3d 674, 678 (3d Cir. 2000) (holding that an NJLAD 

claim is preempted by ERISA, finding that “ERISA Section 502(a) completely preempts a state 

claim”). Second, NJLAD does not apply to employee benefit or insurance claims. See N.J.S.A. 

10:5-2.1 (“[n]othing contained in this act . . . shall be construed . . . to interfere with the 

operation or terms or conditions and administration of any bona fide . . . employee benefit or 

insurance plan or program”); Merritt v. Medical Disability Ins. Plan, No. Civ. A. 96-4495, 1998 

WL 1110694, at *7 (D.N.J. Aug. 28, 1998) (finding that NJLAD claim based on discriminatory 

denial of insurance benefits is barred by the statute); see also Veneziano v. Long Island Pipe 

Fabrication & Supply Corp., 238 F.Supp.2d 683, 690 (D.N.J. 2002) (sanctioning plaintiffs’ 

counsel in ERISA action for litigating a “bad faith” NJLAD claim against insurer, since relevant 

case law is “very clear in explaining that [NJLAD] does not apply to . . . insurance plans”). 

V. CONCLUSION & ORDER 

For the foregoing reasons, IT IS on this 16th day of December 2011, 

ORDERED that, with Plaintiff’s consent,3

 Counts I, II, III, IV, and V are DISMISSED

against Defendant Fuhrman; Counts II, IV, and V are DISMISSED against Defendant 

Prudential; and Counts I, II, III, and V are DISMISSED against Defendant Intesa. 

IT IS FURTHER ORDERED that Prudential’s motion to dismiss Plaintiff’s ERISA 

(Count I) and ADA (Count III) claims is GRANTED. This dismissal is without prejudice with 

respect to the ERISA claim (Count I) only, with leave to file an Amended Complaint that 

 

3 Pl. Br. 1 

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specifically articulates the cause of action Plaintiff asserts and references the ERISA 

enforcement provision under which he brings this claim. 

IT IS FURTHER ORDERED that Intesa’s motion to dismiss Plaintiff’s NJLAD claim 

(Count IV) is GRANTED. 

The Clerk of the Court is directed to terminate the motions: Docket Nos. 10 and 11. 

 /s/ Faith S. Hochberg__________ 

 Hon. Faith S. Hochberg, U.S.D.J.

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