United States District Court, D. Colorado
RECOMMENDATION REGARDING DEFENDANTS' MOTION TO
P. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendants' motion to
dismiss (ECF # 19), Plaintiffs' response (ECF# 47) and
Defendants' reply (ECF #50). The motion has been referred
to this Magistrate Judge for recommendation (ECF
#24). The Court has reviewed the pending motion,
response, reply and all attachments. The Court has also
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. Oral argument has not
been requested and the Court finds that it is not necessary
in this circumstance. This Magistrate Judge recommends that
the motion be GRANTED in-part and DENIED in-part.
sole claim for relief is an enforcement action under 29
U.S.C. §1132(a)(1)(B), the Employee Retirement Income
Security Act (ERISA) (ECF #1, p. 3). Plaintiff Bland,
following a terrible automobile accident on the Western
Slope, was ultimately a patient at Craig
Hospital (ECF #1, p. 3, paras. 13-14). Plaintiff
Bland was admitted to Craig Hospital on 5/9/16. Id.
at p. 3, para. 15. As set forth, Aetna Life Insurance Company
(Aetna), “is the claims fiduciary and claims
administrator for the mandatory appeals under the medical
plan at issue.” Id. at p .2, para. 5. This
involves an ExxonMobil Medical Plan (Plan). Id. at
p. 2, para. 6.
states that “[o]n or about July 18, 2016, Aetna issued
two (2) denials on behalf of the Plan.” Id. at
p. 3, para. 17. Plaintiff claims that Aetna denied a transfer
of Plaintiff Bland to Quality Living on the basis that care
could be provided on an outpatient basis. Id. at p.
3, para. 18. A second denial was for continued inpatient care
at Craig Hospital. Id. at p. 4, para. 20.
assert that the first denial, the Quality Living denial, was
appealed on an expedited basis on July 19, 2016, pro
se. Id. at p. 4, para. 21. That appeal was
denied July, 20, 2016. Id. at p. 4, para. 22. An
expedited voluntary second level appeal of the Quality Living
denial occurred on August 18, 2016. Id. at p. 4,
para. 23. Plaintiffs assert that, rather than rule on the
voluntary second level appeal, “Defendants issued a
revised first level appeal decision letter, omitting, among
other things, information regarding Bland's right to
submit a voluntary second level appeal.” Id.
at pp. 4-5, para 24. Plaintiffs confess that the Quality
Living Denial is precluded by the one year “contractual
state of limitations” and indicate that they “are
not seeking benefits for Brand's transfer to QLI because
Brandin was placed in an alternate facility that was paid for
by Colorado Medicaid.” Plaintiffs' response (ECF
#47, p. 13).
Inpatient Care Denial
assert that the inpatient care denial was appealed on January
12, 2017. Id. at p. 5, para. 25. There is some
further dispute over when Defendants received the January 12,
2017 appeal and an assertion that no determination was ever
rendered on the January 12, 2017 appeal. See ECF #1,
pp. 5-6, paras. 26, 28, 29, 30, &31.
was filed December 15, 2017. Id.
claim that Aetna's original denials of both initial
appeals, dated June 18, 2016, were “unreasonable,
arbitrary and capricious.” Id. at p. 7, para.
33. Plaintiffs claim that Defendants failed to: (1) make a
determination regarding the voluntary second level appeal as
to Quality Living; (2) make a determination as to the
mandatory appeal on the continued care matter; and (3)
provide certain mandatory information pursuant to 29 CFR
§ 2560.503-1(m)(8) which was requested on July 28, 2016
and August 9, 2016. Id. at p. 7, para. 34.
Plaintiffs also claim exhaustion of administrative remedies
has occurred. Id. at p. 7, para. 36.
Court may dismiss a complaint for failure to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
Dismissal under Rule 12(b)(6) may also be based on the lack
of a cognizable legal theory. See Golan v. Ashcroft,
310 F.Supp.2d 1215, 1217 (D. Colo. 2004). To withstand a Rule
12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact, which, taken as true, “state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012). Although allegations of fact are
accepted as true, legal conclusions are not. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Mere “labels
and conclusions” and “a formulaic recitation of
the elements of a cause of action” will not suffice.
Twombly, 550 U.S. at 555. “Factual allegations
must be enough to raise a right to relief above the
speculative level.” Id. Accordingly, the Court
disregards conclusory statements and looks only to whether
the remaining factual allegations plausibly suggest the
defendant is liable. Khalik, 671 F.3d at 1190-91.
the allegations in a complaint “are so general that
they encompass a wide swath of conduct, much of it innocent,
then the plaintiffs have not nudged their claims across the
line from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal
quotations omitted) (“The nature and specificity of the
allegations required to state a plausible claim will vary
based on context . . . [and] requires the reviewing court to
draw on its judicial experience and common sense.”
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214-15 (10th Cir. 2011)).
“The mere metaphysical possibility that some
plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint must
give the court reason to believe this plaintiff has
a reasonable likelihood of mustering factual support for
these claims.” Ridge at Red Hawk, L.L.C.