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Spangler v. Centers for Medicare and Medicaid Services

United States District Court, M.D. Pennsylvania

September 4, 2019

ANITA SPANGLER, individually and as executrix of the Estate of Shirley Hockenberry, deceased, Plaintiff


         Before the Court is Defendant Centers for Medicare & Medicaid Services (“Defendant”)'s motion to dismiss Plaintiff Anita Spangler (“Plaintiff”)'s complaint (Doc. No. 1), pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. No. 5). For the reasons provided herein, the Court will grant Defendant's motion.

         I. BACKGROUND[1]

         On November 11, 2016, Shirley Hockenberry (“Ms. Hockenberry”), Plaintiff's mother, was involved in a motor vehicle pedestrian collision which resulted in the fracture of Ms. Hockenberry's right femur. (Doc. No. 1 ¶ 8.) Ms. Hockenberry was hospitalized and then transferred to Colonial Park Care Center (“CPCC”) for further treatment. (Id.) According to Plaintiff, while at CPCC, Ms. Hockenberry developed medical problems unrelated to the collision, “including a rash that led to infection, pneumonia, and a foot ulcer, that required her to stay and receive additional care at CPCC.” (Id. ¶ 9.)

         Plaintiff alleges that on December 13, 2016, CPCC issued “a Notice of Medicare Non-Coverage” on behalf of Advantra, a Medicare Advantage plan offered by Aetna, informing Ms. Hockenberry that Medicare coverage for skilled nursing facility (“SNF”) services would end on December 16, 2016. (Id. ¶ 10.) Plaintiff further alleges that on December 15, 2016, Livanta, “a service authorized by Medicare to determine if treatments are medically necessary and are mandated to provide expedited review when a beneficiary appeals the provider's decision to terminate services, ” sent a letter to Ms. Hockenberry informing her that her Medicare coverage for treatment at a skilled nursing facility would be terminated. (Id. ¶ 11.) Plaintiff states that Ms. Hockenberry's Medicare coverage through Advantra was subsequently terminated on December 17, 2016 because the injuries she sustained in the collision had improved. (Id. ¶ 12.) Plaintiff alleges, however, that after Ms. Hockenberry's coverage was terminated, her condition subsequently deteriorated because of the medical problems she developed at CPCC that were unrelated to the collision. (Id. ¶ 13.)

         According to Plaintiff, Plaintiff's counsel sent letters to Advantra on February 20, 2017, and to Livanta on February 24, 2017, to “perfect an appeal and to exhaust all administrative remedies.” (Id. ¶ 16.) Plaintiff alleges that on March 19, 2017, Ms. Hockenberry was discharged from CPCC (id. ¶ 17), but did not “recover from her non-collision related injuries, ” and her “medical condition[] continued to deteriorate until she passed away on April 1, 2017” (id. ¶ 18). Plaintiff states that she “appealed to the Administrative Law Judge (ALJ) and received a notice of dismissal on June 5, 2017.” (Id. ¶ 19.) Plaintiff further states the dismissal was upheld by the Medicare Appeals Council (“MAC”) on March 26, 2018. (Id. ¶ 20.)

         Plaintiff, both in her individual capacity and as the executrix of the estate of Ms. Hockenberry, commenced this action by filing her complaint against Defendant on June 27, 2018. (Id. at 1.) In her complaint, Plaintiff asserts a breach of contract claim (Count I), and an appeal from an administrative body claim (Count II). (Id. at 4-5.) On November 16, 2018, Defendant filed a motion to dismiss both claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. No. 5), and a brief in support thereof (Doc. No. 6). Plaintiff filed her brief in opposition to Defendant's motion to dismiss on November 27, 2018 (Doc. No. 7), to which Defendant filed a reply brief on December 11, 2018 (Doc. No. 8). Having been fully briefed, the motion is ripe for disposition.


         When a Rule 12 motion is based on more than one ground, “the [C]ourt should consider the Rule 12(b)(1) challenge first, because if the [C]ourt must dismiss the complaint for lack of subject-matter jurisdiction, all other defenses and objections become moot.” See In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993), aff'd, 39 F.3d 61 (3d Cir. 1994). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff ordinarily bears the burden of persuasion that jurisdiction exists. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

         A dismissal under Federal Rule of Civil Procedure 12(b)(1) is not a judgment on the merits of a case; rather, it is a determination that the Court lacks the power to hear a case. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A Rule 12(b)(1) motion may be treated in one of two ways: “either as a facial or a factual challenge to the [C]ourt's subject matter jurisdiction.” See John G. v. Ne. Educ. Intermediate Unit 19, 490 F.Supp.2d 565, 575 (M.D. Pa. 2007) (citing Gould Elecs., Inc., 220 F.3d at 178). Should the motion be presented or construed as a facial attack, the Court may consider only “the allegations contained in the complaint, ” exhibits attached thereto, “matters of public record . . ., and ‘indisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” See id. (citation omitted). The facial attack “offers a safeguard to the plaintiff similar to a 12(b)(6) motion; the allegations of the complaint are considered to be true.” See Mortensen, 549 F.2d at 891.

         The second type of Rule 12(b)(1) motion - a factual attack - permits the defendant to submit, and the Court to consider, “evidence that controverts the plaintiff's allegations.” See Gould Elecs., Inc., 220 F.3d at 178. If the motion factually challenges the Court's subject matter jurisdiction, no presumption of truthfulness attaches to the allegations in the plaintiff's complaint, and the plaintiff bears the burden of establishing jurisdiction. See Mortensen, 5449 F.2d at 891. In such a case, the plaintiff must be permitted to respond to the defendant's evidence with his or her own evidence supporting jurisdiction. See id. Only when it is clear from the record that the plaintiff is unable to prove the existence of subject matter jurisdiction may a court properly dismiss the claim pursuant to a Rule 12(b)(1) factual attack. See id.

         Defendant's 12(b)(1) motion proceeds as a facial attack and, as a result, the Court will apply the same standard of review as it does in the context of a Rule 12(b)(6) motion, considering only the allegations of the complaint, the documents referenced in the complaint, and any exhibits attached to the complaint in the light most favorable to the plaintiff.[2] See Constitution Party v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The legal standards governing pleading practice in federal court have shifted to a “more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. Indeed, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed.R.Civ.P. 8(a)(2)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         The United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when evaluating the sufficiency of a complaint's allegations as tested against a Rule 12(b)(6) motion: (1) identify the elements a plaintiff must plead to state a claim; (2) discard any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

         In evaluating whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all factual allegations in the complaint, and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss, ” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and must disregard any “formulaic recitation of the elements of a cause of action.” See Twombly, 550 U.S. at 555. Additionally, a court may not assume that a plaintiff can prove facts that the plaintiff has not alleged. See Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In deciding a Rule 12(b)(6) motion, a court may consider, in addition to the facts alleged on the face of the complaint, any exhibits attached ...

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