Opinion
No. 091416.
May 18, 2010.
Charles D. Gianetti, Bridge Port, CT.
PETITION FOR WRIT OF CERTIORARI
1. Does Connecticut General Statutes Section 20-7f(b) ("C. G. S. Sec. 20-7f(b)"):
A. deprive the plaintiff-appellant of substantive due process in violation of the Fifth and Fourteenth Amendments of the U. S. Constitution?; and
B. deprive the plaintiff-appellant of procedural due process in violation of the Fifth and Fourteenth Amendments of the U. S. Constitution?
2. Has the Court Of Appeals for the Second Circuit deprived the plaintiff-appellant of due process by failing to reverse the erroneous dismissal by the District Court of the counts of the Complaint as to defendants Cynthia Bellamy and Samaris Rose?
3. Has the Court Of Appeals for the Second Circuit deprived the plaintiff-appellant of due process by failing to reverse the dismissal of the counts of the Complaint as to defendant Anthem Blue Cross and Blue Shield of Connecticut, Inc.? Application of Griffiths 413 U.S. 717 37 L. Ed. 2d 910 Baltimore Ohio Southwestern Ry v. Voigt 176 U.S. 498 505 William E. Callahan, Plaintiff, Unisource Worldwide Inc., ET Al, Defendants 2003 U.S. Dist. LEXIS 4787 Chambers v. Time Warner, Inc. 282 F.3d 147 152 Conley v. Gibson 355 U.S. 41 48 Gulp v. U. S. 131 F.2d 93 Davis v. Scheerer 468 U.S. 183 82 L. Ed 2d 139 104 Desiano v. Warner-Lambert Co. 326 F.3d 339 347 Foman v Davis 371 U.S. 178 182 Grubel v. MacLaughlin 286 F. Supp. 24 Hormel v. Helvering 312 U. S. at 557 In Re Griffiths 413 U.S. 723 93 S. Ct. 2851 Kealey Pharmacy Home Care Service, Inc. v. Walgreen Co. 539 F. Supp. 1357 761 F.2d 345 Knoll Associates, Inc. v. F. T. C. 397 F.2d 530 Leonard R. Whitfield, Petitioner, vs. Floyd G. Bennett 2007 U.S. Dist. LEXIS 81269 Logan v. Zimmerman Brush Co. 455 U.S. 422 MacLaughlin 286 F. Supp. 24 Michigan Cent. R. Co. v. Powers 201 U.S. 245 26 S. Ct. 459 50 L.Ed, 744 New York State Commission v. Pelham Hall Apartments, Inc. 10 Misc. 2d 334 170 Printing Company v. Sampson Raycom Nat., Inc. v. Campbell 361 F. Supp.2d 679 Regan v. Taxation With Representation of Washington 461 U.S. 540 103 S. Ct. 1997 76 L.Ed. 2d 129 Samuels v. Air Transport Local 504 Saunders v. Shaw 244 U.S. 317 37 S. Ct. 638 Scheuer v. Rhodes 40 L. Ed 2d 90 94 S. Ct. 1683 Shelly v. Kraemer 334 U.S. 1 68 S. Ct 836 92 Sheppard v. Beerman Singleton v. Wulff 428 U.S. 106 121 Snypp v. State of Ohio 70 F.2d 535 State v. Brooks 142 Wash.App. 842 176 P.3d 549 Sturgell v. Creasy 640 F..2d 843 Turner v. City of Memphis 369 U. S. 350 Twin City Pipe Line Co. v. Harding Glass Co. 283 U.S. 353 51 S. Ct. 476 U.S. v. Carolene Products Co 7 F. Supp., 500 U.S. v. Conant 116 F. Supp. 2d 1015 U.S. v. Rumely 345 U.S. 41 73 S. Ct. 543 97 L. Ed. 770 28 U.S.C.A. Sect. 1254 1 52-576 Fifth Fourteenth
TABLE OF CONTENTS page Questions presented for review i Citations of Authorities iii-vi Basis for Jurisdiction 1 Statement of the Case 2 Argument 3-17 Conclusion 17 Appendix (A) Complaint (excerpt) (B) Ruling On Motion To Dismiss (excerpt) (C) Court of Appeals Summary Order (D) Petition For Rehearing En Banc (E) Court of Appeals denial of Petition (F) Plaintiff's Court of Appeals Brief (excerpt) CITATIONS OF AUTHORITIES , , S. Ct. 2851, (1973) 5 , , . 6 , , (D. Conn. March 27, 2003) (Droney, J). 12 , , (2d Cir. 2002). 13 , , [1959]. 15 , (C. C.A. 8th Cir. 1942). 7 , , S. Ct. 3012 (1982). 12 , , (2d Cir. 2003). United States District Court For The Western District of New York, 2007 U.S. Dist. LEXIS 81269, October 2007, Decided, October 2007. 10 , , (1962). 13, 14, 15 , (D.V.I. 1968) 7 , . 8 , , (1973). 5 , (W.D. Wis. 1982), judgment aff'd (7th Cir. (1985). 5 (7th Cir. 1968). 7 , No. 01-CV-0914 (VEB), . 10 , (1982). 15 , (D.V.I. 1968). 5 , , , (1906). 4 , N.Y.S.2d 750 (Sup. 1958). 6 , L.R. 19 Eq. 462, 465. 6 , (N.D. Ohio 2004). 5 , 1983-2 C.B. 90, , , (1983). 4 , 992 F.2d 12, 15 (2nd Cir. 1993). 12 , , (1917). 8 , 416 S. 232, 236, , (1974). 12 , , , L. Ed 1161, 3 A.L.R. 2d 441 (1948). 4 , 18 F.8d 147, 150 (2d Cir. 1994). 12 , , (1976). 8 , (C. C.A. 6th Cir. 1934). 4 , , (Div. 3 2008). 8 , (6th Cir. 1981). 5 , (1962). 8 , , (1931). 6 , (S.D. Ill. 1934). 7 , (E.D. Wis. 2000). 5 , , , (1953). 4 Other page (1) C.G.S. Sect. (a) 11 Federal Rules of Procedure Section 12(a)(1) 11 Federal Rules of Procedure Section 12(b)(6) 10,11, 13 Federal Rules of Procedure Section 15(a)(14) 14 3 Moore, Federal Practice (2d Ed. 1948) 15 U. S. Constitution, Amendment i, 1,9 U. S. Constitution, Amendment i, 3, 6, 9BASIS FOR JURISDICTION
The Court Of Appeals for the Second Circuit affirmed the erroneous dismissal of the District Court, and denied plaintiff-appellant's Petition For Rehearing En Banc. This petition is from a final order that disposes of all claims with respect to all parties, and is filed pursuant to 28 U.S.C.A. Sect. 1254 (1).
The Fifth and Fourteenth Amendments of the United States Constitution hold, in pertinent part, ". . .nor shall any person . . .be deprived of life, liberty, or property without due process of Law. . .," and the Fourteenth Amendment further states," No state shall make or enforce any law which shall. . .deny to any person within its jurisdiction the equal protection of the laws."
STATEMENT OF THE CASE
Plaintiff Charles D. Gianetti, M.D., brought this action against defendants Blue Cross and Blue Shield of Connecticut, Inc., Anthem Health Plans, Inc., Anthem Insurance Companies, Inc., (collectively, "defendant Anthem" or "Anthem"), as well as defendants Samaris Rose ("Rose") and Cynthia Bellamy ("Bellamy"), in Bridgeport Superior Court for state law claims of breach of contract, quantum meruit, unjust enrichment, fraud and misrepresentation, and violations of the Connecticut Unfair Trade Practices Act ("CUTPA"). Defendant Anthem removed the action to the District Court on the grounds that plaintiff's claims are preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sec. 1001, et seq. (2000) ("ERISA") and the claims raise substantial federal questions. Defendant Anthem filed a Motion to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). Defendants Cynthia Bellamy and Samaris Rose have not appeared, and have never filed any pleading, including a motion to dismiss. A motion to dismiss was granted as to all claims and all defendants, by the United States District Court, District of Connecticut, Judge Peter C. Dorsey. An appeal was filed with the Second Circuit Court of Appeals, which issued a Summary Order affirming the decision of the District Court. A Petition For Rehearing En Banc was denied by the Court of Appeals (Appendix E).
ARGUMENT
1. C. G. S. Sec. 20-7f(b) violates the U. S. Constitution. A. Denial of substantive due process.
The standard of review is strict scrutiny.
Plaintiff-appellant asserts, inter alia, a breach of contract claim against Bellamy and Rose [Complaint, Count Two] (Appendix A). The District Court invoked supplemental jurisdiction over plaintiff-appellant's state law claims as to defendants Bellamy and Rose [Ruling On Motion To Dismiss ("Ruling"), p. 14] (Appendix B, p. B 6). The breach of contract claim is based, among other reasons, on the statement signed by both defendant Rose and defendant Bellamy on behalf of defendant Rose. The statement reads in pertinent part, "I understand that I am responsible for the payment of all fees regardless of insurance." Plaintiff-appellant alleges that defendants Bellamy and Rose breached their contract with plaintiff-appellant by failing to pay the amount due after defendant Anthem's payment (Appendix A, para 15).
The District Court simply and arbitrarily made the unequivocal finding that, based on C.G.S. Sec. 20-7f(b), "Bellamy and Rose are not liable under the contract." (Appendix B, p. B 8). The Court then cites C.G.S. Sec. 20-7f(b) which states, "It shall be an unfair trade practice in violation of Chapter 735a [Conn. Gen. Stat. Sec 42-110a, et seq.] for any health care provider to request payment from an enrollee, other than a co-payment or deductible for medical services covered under a managed care plan." C.G.S. 20-7f(b) is the quintessential "guilty under proven innocent" law. While it is the duty of all courts, both state and federal, to uphold and enforce the U.S. Constitution [ Snypp v. State of Ohio, 70 F.2d 535 (C. C.A. 6th Cir. 1934)], it is the special office of the federal courts [ Michigan Cent. R. Co. v. Powers, 201 U.S. 245, 26 S. Ct. 459, 50 L.Ed, 744 (1906)], with final jurisdiction in the United States Supreme Court [U.S. v. Rumely, 345 U.S. 41, 73 S. Ct. 543 97 1. Ed. 770 (1953)], to declare unconstitutional acts of state legislatures [Shelly v. Kraemer, 334 U.S. 1, 68 S. Ct 836, 92 L. Ed. 1161, 3 A.L.R. 2d 441 (1948)], that are in contravention of the U.S. Constitution.
C.G.S. Sec. 20-7f(b) is unconstitutional for the following reasons. The Fourteenth Amendment of the United States Constitution holds, "No state shall make or enforce any law which shall. . .deny to any person within its jurisdiction the equal protection of the laws." The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government's ability to classify persons in creating and applying laws but it does guarantee that those classifications will not be used to arbitrarily burden a group of individuals. Strict scrutiny analysis is required of a legislative classification where, as here, the classification impermissibly interferes with the exercise of a fundamental right and/or operates to the disadvantage of a suspect class [Regan v. Taxation With Representation of Washington, 1983-2 C.b. 90,461 U.S. 540, 103 S. Ct. 1997, 76 L.Ed. 2d 129 (1983)].
Some legislative acts, such as C.G.S. Sec. 20-7f(b), have a classification (here it is "any health care provider") to be tested under the equal protection guarantee.
Plaintiff-appellant is a health care provider and C.G.S. Sec. 20-7(f)(b) applies to the entire class of health care providers ("any health care provider"). Any health care provider is a "suspect classification."
The Court has consistently emphasized that a State which adopts a suspect classification "bears a heavy burden of justification," McLaughlin v. Florida, 379 U.S. 184, 196, 85 S. Ct. 283, 290, 13 L.Ed. 2nd 222 (1964): a burden which, though variously formulated, requires the State to meet certain standards of proof. In order to justify the use of a suspect classification a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification if "necessary. . .to the accomplishment" of its purpose or the safeguarding of its interest Application of Griffiths, 413 U.S. 717, S. Ct. 2851, 37 L. Ed. 2d 910 (1973). [Footnotes omitted].
In Re Griffiths, 413 U.S. 723, 93 S. Ct,. 2851 (1973).
For strict scrutiny analysis to apply, the right asserted must be one that is explicitly or implicitly guaranteed by the Constitution [U.S. v. Conant, 116 F. Supp. 2d 1015 (E.D. Wis. 2000); Raycom Nat, Inc. v. Campbell, 361 F. Supp.2d 679 (N.D. Ohio 2004)], and the classification must significantly interfere with the exercise of that right [Sturgell v. Creasy, 640 F.2d 843 (6th Cir. 1981)].
Liberty to contract is a basic, fundamental and highly important right. The principle, by and large, is that the making of contracts shall be free of governmental interference [Kealey Pharmacy Home Care Service, Inc. v. Walgreen Co., 539 F. Supp. 1357 (W.D. Wis. 1982), judgment aff'd 761 F.2d 345 (7th Cir. (1985)].
The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts. Printing Company v. Sampson, L.R. 19 Eq. 462, 465. Baltimore Ohio Southwestern Ry v. Voigt, 176 U.S. 498, 505.
Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S. Ct. 476 (1931).
It is conceivable, and in fact likely, that there are many instances, such as in this case, where services are not covered under a managed care plan, and/or if there is a managed care plan, there are other sources of payment. Contracts may be negotiated between the parties in reference to other payments. For example, in this case, the patient was involved in a motor vehicle accident, and there may be may be other coverage available for the medical services performed for defendant Rose. Not only should a health care provider, including the plaintiff-appellant, have the right to negotiate a contract, but a patient also has the right to become a party to a contract which they deem to be in their best interest.
The Fourteenth Amendment further holds, ". . .nor shall any State deprive any person of life, liberty, or property, without due process of law. . ." C.G.S. Sec. 20-7f(b) thereby has an additional inherent lack of substantive due process in simply arbitrarily proscribing any action to secure payment to which a party is otherwise entitled. In this case there is no allegation or any indication whatsoever that the insurance coverage for defendant Rose involves a managed care plan.
The right of private property is a fundamental [New York State Commission v. Pelham Hall Apartments, Inc. 10 Misc. 2d 334, 170 N.Y.S.2d 750 (Sup. 1958)] sacred, natural, inherent, and inalienable right, the protection of which is one of the most important purposes of government. It is a common law right, which existed before the adoption of the federal and state constitutions [Grubel v. MacLaughlin, 286 F. Supp. 24 (D.V.I. 1968)], and is not dependent on them for its existence [Culp v. U. S., 131 F.2d 93 (C. C.A. 8th Cir. 1942)]. The constitutional right of private property embraces every species of property recognized by law with all right incident thereto and as protected by the various constitutions, property is more than a mere thing which a person owns [U.S. v. Carolene Products Co, 7 F. Supp., 500 (S.D. Ill. 1934)].
Here plaintiff-appellant is deprived of the property to which he is entitled, i.e., his medical fees.
The constitutional provisions for the protection of property should be liberally construed in favor of the right of property [Knoll Associates, Inc. v. F. T. C. 397 F.2d 530 (7th Cir. 1968)]. The right to private property and its incidents is embraced within the guarantee of liberty, and statutes which violate the constitutional guaranties are null and void.
As to the "preliminary matter" of the unconstitutionality of C.G.S. Sect. 20-7f(b) (Summary Order ["SO"], pp. 2-3) (Appendix C, p. C 2), with its inherent substantive lack of due process, and the prevention of its challenge because it was not argued before the District Court, any question of constitutionality did not arise until after the District Court's decision, by which the plaintiff-appellant was simply denied any hearing before the District Court. Plaintiff-appellant had requested oral argument in his Objection To Motion To Dismiss of defendant Anthem.
The Court of Appeals cites (Appendix C, p. C 3) Singleton v. Wulff, 428 U.S. 106, 121 (1976), in which the Supreme Court held:
The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U. S. 350 (1962), or where "injustice might otherwise result." Hormel v. Helvering, 312 U. S. at 557 [footnote omitted].
This is such a case. Since plaintiff-appellant never had the opportunity to present any argument before the District Court, there certainly could not have been argument about a constitutional issue.
In State v. Brooks, 142 Wash.App. 842, 176 P.3d 549 (Div. 3 2008), the court held that an error raised for the first time on appeal which alleges an invasion of a basic constitutional right will be reviewed to prevent an obvious and manifest injustice. This Court, in Saunders v. Shaw, 244 U.S. 317, 37 S. Ct. 638 (1917), held:
But when the act complained of is the act of the supreme court, done unexpectedly at the end of the proceeding, when the plaintiff in error no longer had any right to add to the record, it would leave a serious gap in the remedy for infraction of constitutional rights if the party aggrieved in such a way could not come here. The defendant was not bound to contemplate a decision of the case before his evidence was heard, and therefore was not bound to ask a ruling or to take other precautions in advance.
For all the above reasons, this Court should find C.G.S. 20-7f(b) unconstitutional.
B. Denial of procedural due process.
The standard of review is strict scrutiny.
The inherent substantive unconstitutionality of C.G.S. Sec. 20-7f(b) is addressed in 1., supra. When a Court reviews a law to determine its procedural fairness, it reviews the system of decision-making to determine whether or not a government entity has taken an individual life, liberty, or property without the fair procedure or "due process" required by the Fifth and Fourteenth Amendments. [No person shall be. . .deprived of life, liberty or property, without due process of law. . . ." U.S. Cons. amend. 5. "[N]or shall any State deprive any person of life, liberty, or property, without due process of Law. . . ." U.S. Const. amend, 14, Sec. 1.]. There is no provision for fair procedure or "due process" in C.G.S. 20-7f(b).
The District Court, affirmed by the Court of Appeals, arbitrarily denied any and all constitutional due process rights, including substantive rights, as in A, supra. The Court of Appeals does not address the dismissal of the claims as to defendants Bellamy and Rose in its Summary Order (Appendix C).
As to the failure of the Court of Appeals to address the dismissal of claims as to Bellamy and Rose, the Court of Appeals noted the assumed familiarity of the parties with the underlying facts, the procedural history, and the issues on appeal, but did not itself have a proper grasp of the entire matter, resulting in its erroneous decision.
2. The District Court, with affirmation by the Court Of Appeals for the Second Circuit, denied the plaintiff-appellant's constitutional due process rights by the wrongful dismissal.
The District Court has simply arbitrarily and unreasonably denied any further proceedings, thereby depriving plaintiff-appellant of his due process constitutional rights. The District Court (Dorsey, J) attempted to justify the unwarranted dismissal by improperly invoking Federal Rule Of Civil Procedure 12(b)(6) to dismiss plaintiff-appellant's Complaint. (Appendix B, p. B 4). However, the Court of Appeals has held:
This court reviews the dismissal of a complaint under Rule 12(b) de novo, taking as true all material facts alleged in the complaint and drawing all reasonable inferences in favor of the plaintiff. See Desiano v. Warner-Lambert Co., 326 F.3d 339, 347 (2d Cir. 2003).
Leonard R. Whitfield, Petitioner, vs. Floyd G. Bennett, No. 01-CV-0914 (VEB), 2007 U, S. Dist. LEXIS 81269*; United States District Court For The Western District of New York, 2007 U.S. Dist. LEXIS 81269, October 2007, Decided, October 2007, Filed.
In its Ruling On Motion To Dismiss the District Court states, "For the reasons stated herein, Plaintiff's claims against Defendants Bellamy and Rose are dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6)." [Ruling, p. 16] (Appendix B, p. B 9). However, Rule 12(a)(1) provides, ". . .a defendant shall serve an answer (A) within 20 days after being served with the summons and complaint. . ." Rule 12(b) states, inter alia, . . . "Every defense. . .shall be asserted in the responsive pleading thereto . . ." In this case defendants Bellamy and Rose have not filed an answer or defense, let alone a motion to dismiss. Since as clearly and completely set forth in plaintiff-appellant's Brief (pp. 3, 7, 12, 24-25) (Appendix F, pp. F 2-6), there is unequivocally no evidence that C.G.S. 20-7f(b) applies to defendants Bellamy and Rose, the claims of plaintiff-appellant in the Complaint were and are proper, viable and valid. Thus, there is absolutely no reason for dismissal of the claims against defendants Bellamy and Rose under Rule 12(b)(6).
As to the claims against defendant Anthem that plaintiff concedes are governed by ERISA, they are the reason plaintiff-appellant requested leave to amend. The reasons leave to amend should be granted are set forth in under 3., infra.
The District Court states in its ruling [p. 16] (Appendix B, p. B 9), "Plaintiff's claims against Bellamy may be time barred. . ." The state law cited, C.G.S. Sec. 52-576(a), Statute of Limitations,
(a) No action for an account, or on any simple or implied contract in writing shall be brought within six years after the right of action accrues, except as provided in subsection (b) of this section, is silent as to quantum meruit and unjust enrichment claims.
Furthermore, plaintiff-appellant asserts that defendants Bellamy and Rose agreed they would not be billed for any amount due until after the review process was completed. The review process essentially has never been completed, but at the very earliest it was ongoing until at least 2007 (Appendix F, F 3, para. 21). Even if defendants Bellamy and Rose had filed a motion to dismiss, the hurdle for dismissal is high.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must accept as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. See, Scheuer v. Rhodes, 416 S. 232, 236, 40 L. Ed 2d 90, 94 S. Ct. 1683 (1974), overruled on other grounds. Davis v. Scheerer, 468 U.S. 183, 82 L. Ed 2nd 139, 104 S. Ct. 3012 (1982).
............
Thus, a motion to dismiss under 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sheppard v. Beerman, 18 F.3d 147, 150 2d Cir. 1994). In its review of a 12(b)(6) motion to dismiss a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2nd Cir. 1993).
William E. Callahan, Plaintiff, Unisource Worldwide, Inc., ET Al, Defendants, 2003 U.S. Dist. LEXIS 4787 (D. Conn. March 27, 2003) (Droney, J).
Plaintiff-appellant's concession that, except for the fraud and misrepresentation and CUTPA counts, the claims against defendant Anthem are preempted by ERISA [SO, p. 3] (Appendix C, p. C 3) has nothing to do with the arbitrary erroneous dismissal of the claims the Court of Appeals did not consider in the Summary Order. As the Court of Appeals notes, citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) [SO, p. 3] (Appendix C, p. C 3), all factual allegations are accepted as true and all reasonable inferences are in favor of plaintiff. The District Court simply arbitrarily and erroneously dismissed plaintiff's claims against defendants Bellamy and Rose, who never filed any answer or pleading, or even an appearance, in response to the Complaint.
Therefore, for the above reasons, the District Court, affirmed by the Court of Appeals, is clearly erroneous in invoking Rule 12(b)(6), which, along with the inherent lack of procedural due process in C.G.S. 20-7f(b), formed the basis for dismissal of plaintiff-appellant's claims against Bellamy and Rose.
3. The District Court denied due process by the prejudicial denial to allow amendment of the Complaint as to defendant Anthem._____
The District Court states in its Ruling, p. 17 (Appendix B, p. B 10), that the denial of leave to amend involves, ""undue delay, bad faith. . .on the part of the movant,. . .undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v Davis, 371 U.S. 178, 182 (1962). The Court finds that such factors are present here.""
A major reason given by the District Court [Ruling On Motion To Dismiss ("Ruling"), pp. 16-17] (Appendix B, p. B 10) for the denial of plaintiff-appellant's request for leave to amend (placed in the Ruling after the erroneous dismissal of Complaint as to defendants Bellamy and Rose) is that, "Plaintiff has filed numerous unsuccessful suits against insurers and former patients, raising claims similar to those in this suit." This totally erroneous, unsupported assertion is belied by the fact, as documented in the records of the courts, that plaintiff-appellant has prevailed in most similar cases involving patients. Even though the case of State of Connecticut v. Gianetti, CV04-4033348S, is totally irrelevant to the claims against defendant Anthem here, it was noted that defendant Anthem had prejudicially referred to it in its Brief (p. 25) (Appendix D, p. D 3), and by the District Court (Appendix B, p. B 6, fn 3). That case was subsequently settled, with no finding of any illegal act or admission of wrongdoing by plaintiff-appellant. And if C.G.S. Sect. 20-7f(b) is found to be unconstitutional, even more weight would be given to granting leave to amend, as to which Foman v. Davis, 371 U. S. 178, 182 (1962), cited in the district court Ruling [p. 17] (Appendix B, p. B 10), holds that "" Rule 15(a) declares that leave to amend "shall be given freely when justice so requires .""
The District Court is bootstrapping the erroneous findings in reference to defendants Bellamy and Rose in reaching its erroneous conclusion that plaintiff-appellant showed "bad faith". Also, all of the District Court's assertions [Ruling, p. 17] (Appendix B, p. B 8) about time-barring of the fraud and misrepresentation count are incorrect, since fraud not revealed until about 2007, well within the three year statute (Appendix F, p. F 3, paras. 20-21).
As noted in plaintiff-appellant's Brief (p. 24) (Appendix F, p. F 5), most of the decisions in plaintiff appellant's suits have been favorable to plaintiff-appellant. No court has ever found against plaintiff-appellant for vexatious suit, including the case with the gratuitous statement [Ruling, p. 17] (Appendix B, p. B 10), "[T]he plaintiffs tactics in filing multitudinous lawsuits, most of which have proven to have no merit, overburden the public courts to further the plaintiff's selfish interests and amount to an abuse of the judicial process." Then bootstrapping on that and on the false premises and assumptions which gave rise to that first erroneous action by the district court, i. e., that there was a violation of C.G.S. 20-7f(b) as to defendants Bellamy and Rose, which there is not [plaintiff-appellant's Brief, pp. 3, 7, 12, 24-25] (Appendix F, pp. F 2-6), the district court held, "The appearance of bad faith on the part of Plaintiff in the filing of this [emphasis added] suit makes the Court disinclined to permit him to amend his Complaint." [Ruling, p. 8] (Appendix B, p. B 11).
Also, if C.G.S. 20-7f(b) is found to be unconstitutional, as plaintiff-appellant has requested, it will of course be of no effect. Even if it were found to be constitutional, there is absolutely no evidence in the record that defendants Bellamy and Rose are enrolled in a managed care plan, or any indication if the services are covered, or if there is a deductible and/or co-insurance (Appendix F, F 3-6).
Thus, the District Court is wrongfully denying the plaintiff-appellant one of the most fundamental rights: the right to access to the courts and judicial process. This arbitrary refusal to allow use of the established court processes is invalid even under the most minimal due process standards [Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)]. Also, amendment of the complaint would allow the plaintiff-appellant to continue to seek the appropriate reimbursement on behalf of defendants Bellamy and Rose.
In Foman itself, cited by the District Court supra, it is held:
"The Federal Rules reject the approach that pleading is a game of skill in which one misstep by [*182] counsel may be decisive to the outcome and accept [****226] the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48.
Rule 15 (a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded. See generally 3 Moore, Federal Practice (2d ed. 1948); 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.
In the absence of any apparent or declared reason — such such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an excuse of discretion and inconsistent with the spirit of the Federal Rules.
Therefore, because of further denial of due process, it is requested that this Court vacate the ruling of the District Court, remand this case, and order that the plaintiff-appellant be granted leave to file an amended complaint as to the ERISA claims.
CONCLUSION
It is respectfully requested that this Court find that C.G.S. Sec. 20-7(b) is unconstitutional. It is further requested that as to defendants Bellamy and Rose the judgment of the District Court be reversed and that this case be restored to the District Court docket. It is also requested that as to defendant Anthem the judgment of the District Court be reversed and that this case be restored to the District Court docket with further proceedings as to the fraud and misrepresentation and CUTPA counts and reconsideration of plaintiff-appellant's request that leave be granted to file an Amended Complaint as to the ERISA matter.