Opinion
Case No. 07 C 2525.
July 25, 2007
Lynn U. Thorpe, Chicago, IL.
Stuart P. Krauskopf, One of His Attorneys.
AETNA'S MOTION FOR ENTRY OF FINAL JUDGMENT
Defendant, Aetna Life Insurance Company a/k/a Aetna Health of Illinois Inc. ("Aetna"), by its attorneys, moves for the entry of a final judgment in its favor, dismissing Aetna with prejudice from this litigation. In support of its motion, Aetna states as follows:
1. Plaintiff filed a four count Complaint seeking payment of medical benefits from Aetna under the Employee Retirement Income Security Act ("ERISA") and under common law theories.
2. Aetna filed a Motion to Dismiss the Complaint in its entirety with a supporting memorandum explaining why it was not and could not be liable as a matter of law. That motion was brought in part as a motion for summary judgment to the extent it relied on documents that were not attached to the Complaint, copies of which were provided and authenticated.
3. In response to Aetna's Motion to Dismiss, plaintiff filed a Motion to Withdraw Complaint which he noticed for presentment on August 2, 2007. In his motion, plaintiff concedes that he has no claims against Aetna under any of the counts of his Complaint and asks to "withdraw the Complaint against Aetna so that he may investigate the proper Plan Administrator for the collection of the debt." (Motion to Withdraw at ¶ 4). A true and correct copy of the Motion to Withdraw is attached as Exhibit A.
4. Plaintiff has had an opportunity to state his claims against Aetna. Faced with the Motion to Dismiss and supporting memorandum, plaintiff has (properly) determined that he has no claims and he has not asked leave to replead against Aetna.
5. By withdrawing his Complaint (rather than seeking dismissal of his claims against Aetna) plaintiff is circumventing the procedures for dismissing parties and claims. To avoid being placed in a limbo-like status that would result from the withdrawal of his Complaint — that is, where there are no claims asserted against Aetna but it has not been dismissed from suit — and for finality, Aetna seeks an order entering judgment in its favor under Rule 41, under Rule 52(a) or, if plaintiff intends to amend his Complaint by naming and serving a different entity, then under Rule 54(b) (so that judgment would be entered against fewer than all of the parties, with an express finding that there is no just reason to delay entry of final judgment for Aetna).
Plaintiff does not identify the authority under which his motion is brought. To the extent it is under Rule 41, Aetna's consent is necessary because of its pending summary judgment motion.
Wherefore, Aetna Life Insurance Company a/k/a Aetna Health of Illinois Inc. moves this court to dismiss Aetna from this litigation with prejudice, enter final judgment in Aetna's favor and for such additional relief this court deems appropriate.
PLAINTIFF'S MOTION TO WITHDRAW COMPLAINT
NOW COMES the Plaintiff, DR. HANSEL M. DeBARTOLO ("Dr. DeBartolo"), by and through his attorneys, The Law Offices of Stuart P. Krauskopf, P.C., as and for his Motion to Withdraw Plaintiff's Complaint as against Defendant, AETNA LIFE INSURANCE COMPANY A/K/A AETNA HEALTH OF ILLINOIS INC. ("Aetna"), states and alleges as follows:
1. Dr. DeBartolo filed this action against Aetna based on information contained in his files as to the health insurance plan covering one of Dr. DeBartolo's patients.
2. In Aetna's Motion to Dismiss, Aetna indicates that it was never the Plan Administrator; that it only provided the medical benefits; and, therefore, Aetna has no responsibility for the debt owed by Dr. DeBartolo's patient.
3. At the time of the filing of this action, Dr. DeBartolo had no knowledge of this, nor did he have anything in his file to indicate otherwise.
4. As a result, after investigating this fully, Dr. DeBartolo seeks to withdraw his Complaint against Aetna so that he may investigate the proper Plan Administrator for the collection of the debt.
WHEREFORE, Plaintiff, DR. HANSEL M. DeBARTOLO, respectfully requests this Honorable Court for the entry of an Order withdrawing his Complaint as against Defendant, AETNA LIFE INSURANCE COMPANY A/K/A AETNA HEALTH OF ILLINOIS INC., and for any other relief which this Court deems just and reasonable.