Opinion
No.: 3:14-CV-476-TAV-CCS
09-01-2015
CARITEN HEALTH PLAN, INC., Plaintiff, v. MID-CENTURY INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on Defendant Mid-Century Insurance Company's Motion to Dismiss Plaintiff's Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 17] and the parties' Joint Motion for Continuance of the Rule 26(f) Conference Deadline and Trial Date [Doc. 31]. Defendant moves the Court to dismiss, for failure to state a claim, plaintiff's claims against it for reimbursement of Medicare benefit payments. Plaintiff has responded in opposition to the motion to dismiss [Doc. 22], and defendant has replied [Doc. 24].
In their Joint Motion for Continuance of the Rule 26(f) Conference Deadline and Trial Date, the parties seek a continuance of the trial in this case from the current trial date of April 11, 2016, to September 26, 2016. The parties also seek an enlargement of time in which to conduct the Rule 26(f) conference mandated by the Court's Scheduling Order [Doc. 27], up to and including November 6, 2015. Additionally, the parties seek to amend the Scheduling Order to provide that the deadline for completing discovery is April 6, 2016, and the deadline for filing dispositive motions is April 29, 2016. In support, the parties state that the Court's ruling on the instant motion to dismiss will likely dictate or affect the scope of discovery and remaining issues for resolution.
For the reasons that follow, the Court will grant in part and deny in part defendant's motion to dismiss. Specifically, the Court will dismiss plaintiff's claim in the alternative for recovery medical service charges under federal common law and plaintiff's claim for an accounting. Additionally, the Court will grant the parties' Joint Motion for Continuance of the Rule 26(f) Conference Deadline and Trial Date.
I. Background
According to the allegations in the complaint, plaintiff is a Medicare Advantage Organization ("MAO") that provides benefits to Medicare beneficiaries who elect to enroll in privately-administered Medicare Advantage ("MA") plans [Doc. 1 p. 1]. Defendant is a no-fault insurance provider that offers Personal Injury Protection, Medical Payments, and Guaranteed Benefits coverage to individuals in accordance with its insurance policies [Id. at p. 1-2]. Plaintiff asserts that when an individual who has enrolled in one of its MA plans is also eligible to receive payment for medical expenses pursuant to an insurance policy with defendant, then defendant becomes a primary medical benefits payer and plaintiff becomes a secondary payer by operation of federal law [Id. at p. 2-3]. Despite this legal state of affairs, plaintiff alleges that defendant routinely refuses requests by plaintiff for defendant to make primary medical expense payments, or to reimburse plaintiff for medical expense payments that plaintiff has made prior to learning that defendant in fact had a primary obligation to make the payment [Id. at p. 25-26].
Plaintiff alleges that "Enrollee 1," a resident of Greeneville, Tennessee, is one such person who simultaneously received Medicare benefits through an MA plan administered by plaintiff and held a no-fault insurance policy with defendant [Id. at p. 26-27]. Plaintiff alleges that on or about October 17, 2012, Enrollee 1 was injured in an automobile accident in Greeneville, Tennessee, and received medical treatment for those injures [Id. at p. 27]. Enrollee 1 was charged at least $55,378.70 by her medical service providers as a result of this medical treatment [Id.].
Plaintiff alleges that Enrollee 1's medical service providers did not indicate on their claims forms that Enrollee 1 held a no-fault insurance policy or had other primary insurance coverage [Id.]. Therefore, plaintiff asserts that it had no reasonable expectation that a no-fault insurance policy would cover Enrollee 1's medical expenses [Id.]. Thus, plaintiff promptly processed and paid the medical charges in accordance with its legal obligation to provide Enrollee 1's Medicare benefits [Id.]. In doing so, plaintiff discharged the medical providers' bills with a payment of benefits in the amount of $15,799.43 [Id. at p. 28].
Plaintiff further alleges that after making these medical payments, plaintiff learned that defendant held a no-fault insurance policy with defendant, which was effective at the time of the accident [Id. at p. 29]. Plaintiff notified defendant on multiple occasions of plaintiff's payment of the medical charges for Enrollee 1's injuries and requested reimbursement from defendant [Id. at 29-30]. Defendant responded to these requests with a form letter from the Farmers National Document Center in Oklahoma City, Oklahoma, stating that its no-fault coverage of Enrollee 1 was "first party" coverage, and therefore, plaintiff "had no 'subrogation' rights" [Id. at p. 30]. Plaintiff alleges that the Farmers National Document Center routinely uses this form letter when responding on behalf of other companies to requests from MAOs for reimbursement of medical payments [Id.]. Plaintiff further alleges that defendant has not reimbursed plaintiff for its payment of Enrollee 1's medical expenses [Id. at p. 30-31].
Plaintiff initiated this action on October 8, 2014, seeking a declaration that the no-fault insurance coverage issued by defendant is primary to Medicare benefits advanced by MAOs such as plaintiff, and that when an MAO such as plaintiff has advanced benefits in which its payments are secondary to defendant's payment obligations, defendant is obligated to make appropriate reimbursement to the MAO [Id. at p. 31-32]. Plaintiff also claims that it is entitled to double damages from defendant for the payment of $15,799.43 it made to discharge Enrollee 1's medical bills, pursuant to the private right of action provided by 42 U.S.C. § 1395y(b)(3)(A), or in the alternative, recovery of the entirety of the $55,378.70 in charges submitted by Enrollee 1's medical providers, pursuant to a federal common law right of action [Id. at p. 32-37]. Additionally, plaintiff brings a claim for restitution or unjust enrichment pursuant to Tennessee law [Id. at 38-41]. Finally, plaintiff seeks an equitable accounting of the amounts that defendant owes plaintiff for medical claims that plaintiff paid, but which defendant's no-fault insurance coverage made defendant a primary payer [Id. at 41-45]. Defendant's motion to dismiss followed.
II. Standard of Review
Rule 8(a)(2) of the Federal Rules of Civil Procedure sets forth a liberal pleading standard. Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004). It requires only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557)).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. In doing so, the Court "construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted).
III. Analysis
"Medicare is a federal health insurance program that provides health insurance benefits to people 65 years of age or older, disabled people, and people with end-stage renal disease." Stalley v. Methodist Healthcare, 517 F.3d 911, 915 (6th Cir. 2008) (citing 42 U.S.C. § 1395c). Although "most Medicare-eligible individuals receive Medicare benefits directly from the government, individuals can elect instead to receive their benefits through private insurance companies that contract with the government to provide 'Medicare Advantage' ('MA') plans." In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 685 F.3d 353, 355 (3d Cir. 2012) (citing 42 U.S.C. § 1395w-21(a)(1)). These plans are governed by Part C of the Medicare Statute. 42 U.S.C. §§ 1395-1395lll (Medicare Statute); 42 U.S.C. §§ 1395w-21-1395w-28 (Part C). The private providers of MA plans are commonly referred to as MAOs. See Avandia, 685 F.3d at 355.
Plaintiff alleges that it is one such MAO. Thus, accepting this allegation as true, plaintiff is responsible for providing the Medicare benefits for enrollees in the MA plans that it administers, including payment of covered medical expenses. Avandia, 685 F.3d at 357-58. In doing so, plaintiff is required to provide the same medical benefits to its enrollees that they would be entitled to receive from a government-administered Medicare plan, as set forth in Parts A and B of the Medicare Statute, and may also provide additional benefits. Id. (citing 42 U.S.C. § 1395w-22(a)(1)-(3)).
Plaintiff, however, is not always required to provide primary payment for covered medical services. In 1980, Congress enacted the Medicare Secondary Payer Act as part of "an effort to counteract escalating healthcare costs." Mich. Spine & Brain Surgeons, PLLC v. State Farm Mut. Auto. Ins. Co., 758 F.3d 787, 789-90 (6th Cir. 2014). "Under the Medicare Secondary Payer Act, in most situations where an individual is covered by both Medicare and another payer, Medicare serves as the secondary payer rather than the primary payer." Id. at 790. "Put differently, when payment is available from a primary plan, the primary plan and not Medicare is responsible for paying the costs of the individual's medical treatment." Id. (citing Stalley, 517 F.3d at 915).
Congress incorporated the principles of this secondary payer scheme into privately-administered MA plans when it enacted Part C in 1997. 42 U.S.C. § 1395w-22(4); Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 1851-1859, 111 Stat. 251, 276-327. As set forth in the "[o]rganization as secondary payer" provision of Part C:
Notwithstanding any other provision of law, a [MAO] may (in the case of the provision of items and services to an
individual under a [MA] plan under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2) of this title) charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section—42 U.S.C. § 1395w-22(4).
(A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or
(B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services.
The cross-referenced section, § 1395y(b)(2), provides that certain private entities, including no-fault insurance providers, are "'primary payers' that have the responsibility to pay for a person's medical treatment." Stalley, 517 F.3d at 915 (citing Glover v. Philip Morris USA, 380 F. Supp. 2d 1279, 1282 (M.D. Fla. 2005) and 42 U.S.C. § 1395y(b)(2)[A](ii)). The cross referenced-section further provides that "[i]f the primary payer has not paid and will not promptly do so . . . Medicare can conditionally pay the cost of the treatment" and then "seek reimbursement for any conditional medical payments from the primary payer" or the recipient of the payment. Id.; see 42 U.S.C. § 1395y(b)(2)(B) (governing conditional payments by the Secretary of Health and Human Services and reimbursement of conditional payments to the appropriate Trust Fund).
Here, defendant contends that plaintiff lacks a right of action to recover the payments it made to medical service providers while defendant was allegedly a primary payer.
A. Federal Right of Action against a Primary Payer for Reimbursement of Medical Payments
Plaintiff argues that it has a federal right of action in this case pursuant to 42 U.S.C. § 1395y(b)(3)(A) or, in the alternative, a federal common law right of action.
1. Right of Action under 42 U.S.C. § 1395y(b)(3)(A)
Section 1395y(b)(3)(A) provides, "There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A)." Paragraph (1) governs the "[r]equirements of group health plans" in providing medical coverage for individuals who also are eligible for Medicare, 42 U.S.C. § 1395y(b)(1), and paragraph (2)(A) establishes the Medicare as secondary payer scheme that Congress cross-referenced in the MAO secondary payer provision, id. § 1395y(b)(2)(A); see id. § 1395w-22(4) (MAO secondary payer provision).
The Sixth Circuit has interpreted the private cause of action provision of § 1395y(b)(3)(A) to permit medical service providers to recover payment for medical services from a group health plan designated as a primary payer under § 1395y(b), when the group health plan denied payment on behalf of an enrollee because the enrollee was eligible for Medicare. Bio-Med. Applications of Tenn., Inc. v. Cent. States Health and Welfare Fund, 656 F.3d 277, 294 (6th Cir. 2011). In so holding, the panel in Bio-Med. interpreted the phrase "in accordance with paragraphs (1) and (2)(A)" contained in § 1395y(b)(3)(A) to mean that a plaintiff seeking to recover against a group health plan must show that the group health plan violated the provisions of both § 1395y(b)(1) and § 1395y(b)(2)(A). Id. at 285 ("But the private cause of action uses the conjunctive: it requires that the primary plan fail to make payment 'in accordance with paragraphs (1) and (2)(A)." (quoting 42 U.S.C. § 1395y(b)(3)(A))).
The Sixth Circuit has since found § 1395y(b)(3)(A) to be ambiguous with respect to the statutory obligations of primary payers that are not group health plans. Mich. Spine, 758 F.3d at 792. As the court in Michigan Spine explained:
On the one hand, paragraph (1), "Requirements of group health plans," notes that group health plans may not take Medicare eligibility into account, and subparagraph (2)(A) indicates that only primary plans that are group health plans need abide by the group health plan requirements in paragraph (1). On the other hand, subparagraph (3)(A), the private cause of action, seems to require that all primary plans—group and non-group health plans alike—abide by the group health plan requirements listed in paragraph (1).Id. Therefore, the court in Michigan Spine deferred to the interpretation of the statute contained in regulations promulgated by the Centers for Medicare and Medicaid Services ("CMS"). Id. at 792-93; see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1985) (explaining that in the face of an ambiguous statute, federal courts must afford deference to and seek guidance from agency regulations). In doing so, the court concluded that a plaintiff seeking to recover against a primary payer that is not a group health plan need only show that the primary payer failed to comply with its obligation to pay under § 1395y(b)(2)(A). Id. Thus, the court held that a medical service provider had a federal right of action to recover payment for services rendered to a person covered by an automobile insurance policy, when the automobile insurance policy made the insurance company a primary payer under § 1395y(b)(2)(A). Id.
The Sixth Circuit does not appear to have answered the question presented by this case: whether § 1395y(b)(3)(A) gives an MAO, rather than a medical service provider, a right of action to recover from a primary payer when the MAO has made medical payments that should have been made by the primary payer. Nevertheless, the Court need not approach the issue from a blank slate.
In Avandia, the Third Circuit answered this question in the affirmative. 685 F.3d at 367. Undertaking an extensive review of the statutory text, statutory framework, legislative history, and public policy, the court concluded that § 1395y(b)(3)(A) unambiguously provides a federal right of action for an MAO to recover medical payments from a primary payer. Id. at 359-65. Additionally, the court noted that CMS regulations also interpret the Medicare Statute to provide such a federal right of action. Id. at 365-67. Therefore, court explained that even if § 1395y(b)(3)(A) were ambiguous, the court would defer to the interpretation of CMS and find that MAOs have a private right of action under § 1395y(b)(3)(A) to recover medical payments from primary payers. Id. at 367.
The Court finds the Third Circuit's analysis in Avandia to be persuasive. Thus, the Court adopts the reasoning and holding of Avandia. Avandia, 685 F.3d at 357-67; see, e.g., Humana Med. Plan, Inc. v. W. Heritage Ins. Co., — F. Supp. 3d —, —, 2015 WL 1191208, at *5 (S.D. Fla. Mar. 16, 2015) (adopting the reasoning and holding of Avandia); Collins v. Wellcare Healthcare Plans, Inc., 73 F. Supp. 3d 653, 665 (E.D. La. 2014) (same); Humana Ins. Co. v. Farmers Tex. Cnty. Mut. Ins. Co., — F. Supp. 3d —, —, 2014 WL 8388619, at *2 (W.D. Tex. Sept. 24, 2014) (same); cf. Mich. Spine, 758 F.3d at 793 (citing Avandia with approval for the proposition that "other federal circuits have allowed claims under the Medicare Secondary Payer Act to proceed against non-group health plans without evidence that Medicare eligibility was involved in the benefit decision"). Accordingly, the Court concludes that plaintiff has a federal right of action in this case pursuant to § 1395y(b)(3)(A).
Defendant argues that Avandia was wrongly decided because the court failed to consider that the secondary payer scheme established by § 1395y(b)(2)(A), when viewed in the context of the conditional payments scheme established by § 1395y(b)(2)(B), "relates only to the recovery of conditional payments made by the Secretary from the Trust Fund, not payments made by MAOs from their own funds" [Doc. 18 p. 26 n.5].
Defendant is correct that § 1395y(b)(2)(B) governs the circumstances in which the Secretary of Health and Human Services may make a conditional payment in the event that a primary payer does not comply with its statutory obligations, as well as the procedure by which the United States may seek reimbursement. 42 U.S.C. § 1395y(b)(2)(B). But the court in Avandia did consider the conditional payment scheme established by § 1395y(b)(2)(B) when interpreting the secondary payer scheme established by § 1395y(b)(2)(A) and the private right of action set forth in § 1395y(b)(3)(A). Avandia, 685 F.3d 358. As the court in Avandia explained, "[t]he Medicare Statute . . . creates two separate causes of action allowing for recovery of double damages where a primary payer fails to cover the costs of medical treatment"—one for the United States, and one for private plaintiffs "with no particular plaintiff specified." Avandia, 658 F.3d at 359. Thus, the court in Avandia concluded that the secondary payer scheme of § 1395y(b)(2)(A) is not limited to government-administered Medicare plans. Avandia, 685 F.3d at 359-60.
The Court agrees with this interpretation of the law. The secondary payer scheme established by § 1395y(b)(2)(A) applies to "[p]ayment under this subchapter." 42 U.S.C. § 1395y(b)(2)(A); Avandia, 658 F.3d at 359. As the court in Avandia noted, the term "subchapter" in this instance refers to the entire Medicare Statute, including Part C governing MAOs. Avandia, 658 F.3d at 360. Therefore, as cross-referenced in the "[o]rganization as secondary payer" provision of Medicare Part C, 42 U.S.C. § 1395w-22(4), the language of § 1395y(b)(2)(A) applies to MA plans. Additionally, the private right of action provision of § 1395y(b)(3)(A) specifically refers to this secondary payer scheme by citing paragraph 2(A), but not the conditional payments scheme of paragraph 2(B). Thus, § 1395y(b)(3)(A) provides a private right of action that extends to MA plans for violations of § 1395y(b)(2)(A).
Defendant also argues that § 1395y(b)(3)(A) does not extend to actions to recover reimbursements for secondary payments made by MAOs, because in such a case, "Medicare gets nothing if [p]laintiff successfully recovers" [Doc. 18 p. 25]. Defendant's argument takes too narrow a view of the statutory framework. "If an MA plan provides CMS with a bid to cover Medicare-eligible individuals for an amount less than the benchmark calculated by CMS, it must use seventy-five percent of that savings to provide additional benefits to its enrollees." Avandia, 685 F.3d at 365 (citing 42 U.S.C. §§ 1395w-24(b)(1)(C)(i), (b)(3)(C), and (b)(4)(C). "The remaining twenty-five percent of the savings is retained by the Medicare Trust Fund." Id. Therefore, Medicare achieves a cost savings "when MAOs spend less on providing coverage for their enrollees, as they will if they recover efficiently from primary payers," and the taxpayers enrolled in the MA plan receive additional benefits. Id.
Defendant further argues that a CMS regulation cannot create a right of action [Doc. 18 p. 27-28]. This argument is inapposite, however, because the Court concludes that § 1395y(b)(3)(A) provides a right of action to plaintiff independent of any CMS regulation.
Finally, defendant argues that it did not violate § 1395y(b)(2)(A) because plaintiff made a "conditional payment" pursuant to § 1395y(b)(2)(B) before determining whether defendant "must pay" or could "reasonably expected to pay" [Doc. 18 p. 29]. Thus, defendant argues that, under the alleged facts, it did not induce plaintiff to make a medical payment on its behalf. Plaintiff's allegations are sufficient to show, however, that defendant was designated as a primary payer by law yet failed to make a primary payment. The allegations also are sufficient to show that plaintiff had no reason to believe that a primary payment would be forthcoming when it paid Enrollee 1's medical expenses. 42 U.S.C. § 1395y(b)(2)(A)(ii). And the allegations are sufficient to show that that defendant refused to reimburse plaintiff once their relative obligations under the statutory scheme became clear. Taken together, these allegations are sufficient to state a claim that defendant failed to comply with its statutory obligations and that plaintiff may recover from defendant.
Viewing the allegations in the light most favorable to plaintiff, the Court finds that plaintiff has pleaded sufficient facts to support an inference that defendant violated § 1395y(b)(2)(A) when it failed to pay Enrollee 1's medical expenses as a primary payer under the Medicare Statute and thereafter refused to reimburse plaintiff for plaintiff's payment of those expenses. Because § 1395y(b)(3)(A) provides plaintiff with a federal right of action in this instance, plaintiff has stated a plausible claim to relief.
2. Right of Action under Federal Common Law
As an alternative to its claim for damages pursuant to § 1395y(b)(3)(A), plaintiff asserts that it is entitled to recover the charges that were submitted to it by Enrollee 1's medical providers, pursuant to federal common law. In support, plaintiff argues that the Court should create such a right of action because "Congress expected that [MAOs] would be able to collect their charges" in accordance with the MAO as secondary payer provision of § 1395w-22(4) [Doc. 22 p. 28 (internal quotation marks omitted)].
The Sixth Circuit has held that a statute with nearly identical language to § 1395w-22(4) does not contain an implied private right of action. Care Choices HMO v. Engstrom, 330 F.3d 786, 789 (6th Cir. 2003) (analyzing 42 U.S.C. § 1395mm(e)(4), which applies to Medicare-substitute HMOs rather than MAOs). In so finding, the Care Choices panel explained that rather than create a right of action for Medicare-substitute HMOs, § 1395mm(e)(4) "is intended to explain what Medicare-substitute HMOs are still permitted to do—namely, include a provision in their own policies making them a secondary insurer—and is not intended to create an affirmative right to collect from other sources of insurance via an action in federal court." Care Choices, 330 F.3d at 790.
Plaintiff argues that this holding does not bind the Court here, because plaintiff is not proceeding on the theory that § 1395w-22(a)(4) implies a federal cause of action [Doc. 22 p. 28]. Rather, plaintiff contends that the Court may find support for its claim within the ether of the federal common law.
"The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law, nor does the existence of congressional authority under Art. I mean that federal courts are free to develop a common law to govern those areas until Congress acts." Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-41 (1981) (internal citation omitted). "[A]bsent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." Id. at 641. Thus, federal common law should only be "resorted to '[i]n absence of an applicable Act of Congress,' and because the Court is compelled to consider federal questions 'which cannot be answered from federal statutes alone.'" City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 314 (1981) (citations omitted).
Here, Congress has imposed an extensive statutory scheme through the Medicare Act. Yet "[t]he Medicare Act contains no express directive for federal courts to formulate a common law of subrogation, let alone a set of priorities between competing claimants to insurance proceeds." Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1155 (9th Cir. 2013). And the Sixth Circuit has expressly found that Congress did not imply a right of action in a secondary payer provision similar to § 1395w-22(e). Care Choices, 330 F.3d at 789. Furthermore, plaintiff does not cite any cases finding a federal common law right to action of the type that it proposes in this case. Therefore, the Court declines to create a federal common law right of action for MAOs to recover charges from primary payers under the Medicare Act.
Accordingly, plaintiff has not stated a plausible claim to relief under federal common law, and that claim will be dismissed.
B. Claim for Restitution or Unjust Enrichment
In addition to its federal claims, plaintiff asserts a state law claim for restitution or unjust enrichment [Doc. 1 p. 38-41]. Defendant's sole argument for the dismissal of plaintiff's claim for restitution or unjust enrichment is that "[t]he Court should not exercise supplemental jurisdiction over all of the state law claims because [p]laintiff's federal claims warrant dismissal" [Doc. 18 p. 30]. Because the Court finds that plaintiff may proceed on its federal claim pursuant to § 1395y(b)(3)(A), the provisions of 28 U.S.C § 1367(c)(3) do not apply in this case.
C. Claim for an Accounting
Finally, plaintiff asserts a claim for an accounting [Doc. 1 p. 41-45]. "An accounting is a species of disclosure, predicated upon the legal inability of a plaintiff to determine how much, if any, money is due to him from another." Bradshaw v. Thompson, 454 F.2d 75, 79 (6th Cir. 1972). "It is an extraordinary remedy, and like other equitable remedies, is available only when legal remedies are inadequate." Id.; see Greene Cnty. Union Bank v. Miller, 75 S.W.2d 49, 52 (Tenn. Ct. App. 1934) ("The foundation of jurisdiction in equity in a case of complicated accounts is based upon the inadequacy of the legal remedy. . . ."). "Generally, absent some duty at law to provide an accounting, an action in equity for an accounting requires a fiduciary relationship or some other special circumstance particularly meriting this remedy." Law v. Bioheart, Inc., 2009 WL 693149, at *16 (W.D. Tenn. Mar. 13, 2009) (citing Rodgers v. Roulette Records, Inc., 677 F. Supp. 731, 738-39 (S.D.N.Y. 1988)).
Defendant argues that plaintiff's claim for an accounting should be dismissed because plaintiff has not adequately alleged a fiduciary relationship [Doc. 18 p. 29]. Plaintiff responds that defendant's allegedly deliberate refusal to comply with its federal obligation to reimburse plaintiff is a special circumstance that "easily justifies requiring [defendant] to account for the full amount of money that it has improperly withheld from the Medicare program" [Doc. 22 p. 32].
Plaintiff's complaint does not seek to recover all of the payments it has made for all of its enrollees while plaintiff was designated a secondary payer and defendant was designated a primary payer. Rather, plaintiff's complaint seeks to recover the payments that it made on behalf of Enrollee 1 in connection with her accident on or about October 17, 2012. To the extent that the complaint implicates other medical payments, the complaint seeks only a declaration that defendant has an obligation to reimburse plaintiff when plaintiff has made payments as a secondary payer while defendant is statutorily designated as a primary payer [Doc. 1 p. 31-32]. Thus, the only specific accounts at issue in this case are the accounts related to Enrollee 1. Nothing in the complaint suggests that plaintiff's legal remedy will be inadequate. Quite to the contrary, plaintiff identifies in its complaint the exact amount of payments that it made for Enrollee 1's medical expenses—$15,799.43 [Doc. 1 p. 28].
Additionally, the Court does not find sufficient facts in the complaint to conclude that the parties have a fiduciary relationship or that this case presents a special circumstance. Plaintiff effectively seeks a declaration that it has statutory subrogation rights to defendant in circumstances where defendant is designated as a primary payer under the Medicare Statute. Therefore, the parties' relationship is akin to a contractual relationship, albeit one imposed by statute rather than formed by a meeting of the minds. As a general matter, a contractual relationship is not sufficient to establish a fiduciary relationship or a special circumstance. See Rodgers, 677 F. Supp. at 739.
Therefore, the Court concludes that plaintiff has failed to state a claim to relief for an equitable accounting, and that claim will be dismissed.
IV. Conclusion
For these reasons, defendant's motion to dismiss [Doc. 17] is GRANTED in part and DENIED in part. Plaintiff's claims against defendant for the recovery medical service charges under federal common law, and for an equitable accounting, are hereby DISMISSED.
Additionally, the parties' Joint Motion for Continuance of the Rule 26(f) Conference Deadline and Trial Date [Doc. 31] is GRANTED. The trial of this case, previously set for April 11, 2016, is hereby CANCELLED and is RESCHEDULED for September 26 , 2016 . The final pretrial conference previously set for April 4, 2016, is hereby CANCELLED and is RESCHEDULED for September 19 , 2016, at 1:30 p.m. Additionally, the parties are granted an enlargement of time, up to and including November 6, 2015, in which to hold a Rule 26(f) conference. Finally, the Court's Scheduling Order [Doc. 27] is amended to provide that discovery shall be completed on or before April 6, 2016, and dispositive motions shall be filed on or before April 29, 2016. No further continuances will be granted absent extraordinary circumstances.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
Care Choices does not control the outcome of this case with respect to the private right of action provision of § 1395y(b)(3)(A), because that provision was not before the court for consideration.