1 WO 2 3 4 5
9 Valley Pain Centers LLC, et al., No. CV-19-05395-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 Aetna Life Insurance Company, et al.,
13 Defendants. 14 15 Counterclaim Defendants Sean Maldonado and James Allen have filed “joinders”1 16 (Docs. 633 and 637, respectively) to Greg Maldonado’s Motion to Dismiss (Doc. 631-1).2 17 Having resolved Greg Maldonado’s Motion, the Court will now issue its rulings on Sean 18 Maldonado and James Allen’s Motions to Dismiss. 19 I. Background3 20 As discussed in its prior Order (Doc. 700), after receiving leave to amend, Aetna 21 filed its Third Amended Counterclaims (“TACC”) on April 4, 2022.4 The TACC includes 22
23 1 Although the Motions are titled as “Joinders,” the parties recently represented to the Court that Sean Maldonado and James Allen dispute that the Court’s Order resolving Greg 24 Maldonado’s Motion to Dismiss also resolved their Motions. (Doc. 703 at n.2).
25 2 Aetna filed a Response in Opposition to their joinders. (Doc. 658).
26 3 The Court’s prior Order (Doc. 700) contained an extensive background, and the Court incorporates the factual background section of that Order here. 27 4 See Advanced Reimbursement Sol. LLC v. Aetna Life Ins. Co., No. 2:19-cv-05395-DLR 28 (D. Ariz. May 25, 2022) (Doc. 544); Sealed Third Amended Complaint, Advanced Reimbursement Sol. LLC v. Aetna Life Ins. Co., No. 2:19-cv-05395-DLR (D. Ariz. Apr. 8, 2022) (Doc. 547). 1 the same thirteen separate claims as the Second Amended Complaint but, among other 2 Counterclaim Defendants, Aetna added Counterclaim Defendants Greg Maldonado and 3 Thomas Moshiri in their personal capacities. (Doc. 547 at 2, 62–90). Aetna also added 4 Counterclaim Defendants Sean Maldonado and James Allen in their personal capacities. 5 (Id.) Sean Maldonado is the Assistant Director of Operations at Pantheon Global Holdings, 6 LLC.5 (Id. at ¶ 32). James Allen is the Executive Vice President of Advanced 7 Reimbursement Solutions, LLC (“ARS”) and Pantheon Global Holdings, LLC. (Id. at 8 ¶ 33). 9 Greg Maldonado and Thomas Moshiri moved to dismiss the counterclaims against 10 them on the basis that neither of them were personally liable for the actions committed by 11 ARS, American Surgical Development (“ASD”), or their respective outpatient treatment 12 centers (“OTCs”). They argued that none of Aetna’s counterclaims contained sufficient 13 factual allegations as to their involvement in the alleged scheme. (Docs. 627; 631-1). 14 The Court granted Greg Maldonado and Thomas Moshiri’s Motions to Dismiss 15 Aetna’s negligent misrepresentation counterclaim (counterclaim four), its state and federal 16 RICO counterclaims (counterclaims five, six, seven, and eight), and its ERISA 17 counterclaim (counterclaim eleven). The Court denied their Motions, however, as to 18 Aetna’s tortious interference with contract, fraud, civil conspiracy, aiding and abetting, 19 unjust enrichment, and money had and received counterclaims (counterclaims one, two, 20 three, nine, ten, twelve, thirteen). 21 The Court will now consider Sean Maldonado and James Allen’s Joinder Motions. 22 II. Legal Standards 23 Like Counterclaim Defendants Greg Maldonado and Thomas Moshiri, 24 Counterclaim Defendants Sean Maldonado and James Allen seek to dismiss Aetna’s 25 counterclaims under both Federal Rules of Civil Procedure 12(b)(6) and 9(b). Again, the 26 Court incorporates and applies the legal standards articulated in its prior Order. (Doc. 700 27 at 5–7). 28
5 Patheon Global Holdings, LLC is the sole member of ARS. (Doc. 547 at ¶ 29). 1 III. Discussion 2 The Court will begin with Sean Maldonado’s Motion and then consider James 3 Allen’s Motion. 4 A. Counterclaim Defendant Sean Maldonado’s Motion (Doc. 633) 5 Sean Maldonado moves to dismiss the counterclaims against him6 on the same 6 grounds as Greg Maldonado. (See Doc. 633 at 1 stating “[a]ll arguments Greg Maldonado 7 made in the Motion apply equally to and are hereby asserted by Sean Maldonado”). 8 Because Sean Maldonado asserts the same arguments as Greg Maldonado, the Court finds 9 the reasoning behind its ruling on Greg Maldonado’s Motion to Dismiss applies equally to 10 Sean Maldonado’s Motion. 11 In its prior Order, the Court found Aetna’s fraud allegations against Greg 12 Maldonado allowed the Court to draw reasonable inferences that Maldonado was put on 13 fair notice and Aetna had satisfied Rule 9(b)’s pleading standards. (Doc. 700 at 9). The 14 Court found the same as to Aetna’s civil conspiracy counterclaim. (Id. at 13). The Court 15 dismissed Greg Maldonado’s negligent misrepresentation claim, however, because 16 although Aetna was likely able to allege a duty as to Greg Maldonado, it had not done so. 17 (Id. at 12). The Court also dismissed Aetna’s state and federal RICO counterclaims against 18 Greg Maldonado because Aetna failed to identify the enterprise at issue. (Id. at 16). The 19 Court found Aetna had alleged sufficient facts for its tortious interference with contract 20 counterclaim and its aiding and abetting counterclaim because that counterclaim was based 21 on Aetna’s underlying torts of fraud, tortious interference with contract, and its civil 22 conspiracy counterclaims. (Id. at 19). The Court dismissed Aetna’s ERISA counterclaim 23 because although the TACC alleged the funds at issue remained in possession of the 24 Counterclaim Defendants, it did not provide further factual support for this allegation as to 25 Greg Maldonado. (Id. at 20). Last, the Court found the pled facts were sufficient to show 26 Greg Maldonado received a benefit and thus Aetna had adequately pled an unjust 27 enrichment and money had and received counterclaim. (Id. at 21). 28 6 All thirteen of Aetna’s counterclaims are asserted against “[a]ll Counterclaim Defendants.” (Doc. 547 at 62–91) 1 Accordingly, the Court will grant, in part, Sean Maldonado’s Motion to Dismiss 2 as to Aetna’s negligent misrepresentation counterclaim (counterclaim four), its state and 3 federal RICO counterclaims (counterclaims five, six, seven, and eight), and its ERISA 4 counterclaim (counterclaim eleven). The Court will deny, in part, Sean Maldonado’s 5 Motion to Dismiss as to Aetna’s tortious interference with contract, fraud, civil conspiracy, 6 aiding and abetting, unjust enrichment, and money had and received counterclaims 7 (counterclaims one, two, three, nine, ten, twelve, thirteen). 8 B. Counterclaim Defendant James Allen’s Motion 9 Allen joins Greg Maldonado’s Motion to Dismiss for the same reasons and on 10 additional grounds. (Doc. 637). Specifically, Allen argues the allegations related to him 11 are lumped together and thus fail as a matter of law. (Id. at 4). Allen also argues the TACC 12 contains no factual allegations of any actions taken or statements made by him. (Id.) 13 At the outset, “a complaint need not distinguish between defendants that had the 14 exact same role in a fraud.” United States ex rel. Silingo v. WellPoint, Inc., 904 F.3d 667, 15 677 (9th Cir. 2018). Nevertheless, the Court agrees with Allen that the fraud allegations 16 contained in the TACC do not meet the level of particularity under the heightened Rule 17 9(b) pleading standard. Unlike the allegations against Greg Maldonado and Thomas 18 Moshiri, Aetna provides no specific examples of Allen’s involvement in the alleged 19 scheme. Although Aetna conclusory alleges Allen was “aware of, participated in, and 20 directed the relevant activities of ARS and ASD,” Aetna does not offer further factual 21 support for this claim. (Doc. 547 at ¶ 73).
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1 WO 2 3 4 5
9 Valley Pain Centers LLC, et al., No. CV-19-05395-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 Aetna Life Insurance Company, et al.,
13 Defendants. 14 15 Counterclaim Defendants Sean Maldonado and James Allen have filed “joinders”1 16 (Docs. 633 and 637, respectively) to Greg Maldonado’s Motion to Dismiss (Doc. 631-1).2 17 Having resolved Greg Maldonado’s Motion, the Court will now issue its rulings on Sean 18 Maldonado and James Allen’s Motions to Dismiss. 19 I. Background3 20 As discussed in its prior Order (Doc. 700), after receiving leave to amend, Aetna 21 filed its Third Amended Counterclaims (“TACC”) on April 4, 2022.4 The TACC includes 22
23 1 Although the Motions are titled as “Joinders,” the parties recently represented to the Court that Sean Maldonado and James Allen dispute that the Court’s Order resolving Greg 24 Maldonado’s Motion to Dismiss also resolved their Motions. (Doc. 703 at n.2).
25 2 Aetna filed a Response in Opposition to their joinders. (Doc. 658).
26 3 The Court’s prior Order (Doc. 700) contained an extensive background, and the Court incorporates the factual background section of that Order here. 27 4 See Advanced Reimbursement Sol. LLC v. Aetna Life Ins. Co., No. 2:19-cv-05395-DLR 28 (D. Ariz. May 25, 2022) (Doc. 544); Sealed Third Amended Complaint, Advanced Reimbursement Sol. LLC v. Aetna Life Ins. Co., No. 2:19-cv-05395-DLR (D. Ariz. Apr. 8, 2022) (Doc. 547). 1 the same thirteen separate claims as the Second Amended Complaint but, among other 2 Counterclaim Defendants, Aetna added Counterclaim Defendants Greg Maldonado and 3 Thomas Moshiri in their personal capacities. (Doc. 547 at 2, 62–90). Aetna also added 4 Counterclaim Defendants Sean Maldonado and James Allen in their personal capacities. 5 (Id.) Sean Maldonado is the Assistant Director of Operations at Pantheon Global Holdings, 6 LLC.5 (Id. at ¶ 32). James Allen is the Executive Vice President of Advanced 7 Reimbursement Solutions, LLC (“ARS”) and Pantheon Global Holdings, LLC. (Id. at 8 ¶ 33). 9 Greg Maldonado and Thomas Moshiri moved to dismiss the counterclaims against 10 them on the basis that neither of them were personally liable for the actions committed by 11 ARS, American Surgical Development (“ASD”), or their respective outpatient treatment 12 centers (“OTCs”). They argued that none of Aetna’s counterclaims contained sufficient 13 factual allegations as to their involvement in the alleged scheme. (Docs. 627; 631-1). 14 The Court granted Greg Maldonado and Thomas Moshiri’s Motions to Dismiss 15 Aetna’s negligent misrepresentation counterclaim (counterclaim four), its state and federal 16 RICO counterclaims (counterclaims five, six, seven, and eight), and its ERISA 17 counterclaim (counterclaim eleven). The Court denied their Motions, however, as to 18 Aetna’s tortious interference with contract, fraud, civil conspiracy, aiding and abetting, 19 unjust enrichment, and money had and received counterclaims (counterclaims one, two, 20 three, nine, ten, twelve, thirteen). 21 The Court will now consider Sean Maldonado and James Allen’s Joinder Motions. 22 II. Legal Standards 23 Like Counterclaim Defendants Greg Maldonado and Thomas Moshiri, 24 Counterclaim Defendants Sean Maldonado and James Allen seek to dismiss Aetna’s 25 counterclaims under both Federal Rules of Civil Procedure 12(b)(6) and 9(b). Again, the 26 Court incorporates and applies the legal standards articulated in its prior Order. (Doc. 700 27 at 5–7). 28
5 Patheon Global Holdings, LLC is the sole member of ARS. (Doc. 547 at ¶ 29). 1 III. Discussion 2 The Court will begin with Sean Maldonado’s Motion and then consider James 3 Allen’s Motion. 4 A. Counterclaim Defendant Sean Maldonado’s Motion (Doc. 633) 5 Sean Maldonado moves to dismiss the counterclaims against him6 on the same 6 grounds as Greg Maldonado. (See Doc. 633 at 1 stating “[a]ll arguments Greg Maldonado 7 made in the Motion apply equally to and are hereby asserted by Sean Maldonado”). 8 Because Sean Maldonado asserts the same arguments as Greg Maldonado, the Court finds 9 the reasoning behind its ruling on Greg Maldonado’s Motion to Dismiss applies equally to 10 Sean Maldonado’s Motion. 11 In its prior Order, the Court found Aetna’s fraud allegations against Greg 12 Maldonado allowed the Court to draw reasonable inferences that Maldonado was put on 13 fair notice and Aetna had satisfied Rule 9(b)’s pleading standards. (Doc. 700 at 9). The 14 Court found the same as to Aetna’s civil conspiracy counterclaim. (Id. at 13). The Court 15 dismissed Greg Maldonado’s negligent misrepresentation claim, however, because 16 although Aetna was likely able to allege a duty as to Greg Maldonado, it had not done so. 17 (Id. at 12). The Court also dismissed Aetna’s state and federal RICO counterclaims against 18 Greg Maldonado because Aetna failed to identify the enterprise at issue. (Id. at 16). The 19 Court found Aetna had alleged sufficient facts for its tortious interference with contract 20 counterclaim and its aiding and abetting counterclaim because that counterclaim was based 21 on Aetna’s underlying torts of fraud, tortious interference with contract, and its civil 22 conspiracy counterclaims. (Id. at 19). The Court dismissed Aetna’s ERISA counterclaim 23 because although the TACC alleged the funds at issue remained in possession of the 24 Counterclaim Defendants, it did not provide further factual support for this allegation as to 25 Greg Maldonado. (Id. at 20). Last, the Court found the pled facts were sufficient to show 26 Greg Maldonado received a benefit and thus Aetna had adequately pled an unjust 27 enrichment and money had and received counterclaim. (Id. at 21). 28 6 All thirteen of Aetna’s counterclaims are asserted against “[a]ll Counterclaim Defendants.” (Doc. 547 at 62–91) 1 Accordingly, the Court will grant, in part, Sean Maldonado’s Motion to Dismiss 2 as to Aetna’s negligent misrepresentation counterclaim (counterclaim four), its state and 3 federal RICO counterclaims (counterclaims five, six, seven, and eight), and its ERISA 4 counterclaim (counterclaim eleven). The Court will deny, in part, Sean Maldonado’s 5 Motion to Dismiss as to Aetna’s tortious interference with contract, fraud, civil conspiracy, 6 aiding and abetting, unjust enrichment, and money had and received counterclaims 7 (counterclaims one, two, three, nine, ten, twelve, thirteen). 8 B. Counterclaim Defendant James Allen’s Motion 9 Allen joins Greg Maldonado’s Motion to Dismiss for the same reasons and on 10 additional grounds. (Doc. 637). Specifically, Allen argues the allegations related to him 11 are lumped together and thus fail as a matter of law. (Id. at 4). Allen also argues the TACC 12 contains no factual allegations of any actions taken or statements made by him. (Id.) 13 At the outset, “a complaint need not distinguish between defendants that had the 14 exact same role in a fraud.” United States ex rel. Silingo v. WellPoint, Inc., 904 F.3d 667, 15 677 (9th Cir. 2018). Nevertheless, the Court agrees with Allen that the fraud allegations 16 contained in the TACC do not meet the level of particularity under the heightened Rule 17 9(b) pleading standard. Unlike the allegations against Greg Maldonado and Thomas 18 Moshiri, Aetna provides no specific examples of Allen’s involvement in the alleged 19 scheme. Although Aetna conclusory alleges Allen was “aware of, participated in, and 20 directed the relevant activities of ARS and ASD,” Aetna does not offer further factual 21 support for this claim. (Doc. 547 at ¶ 73). Aetna provides one example, based on 22 information and belief, of Allen’s involvement, including that he “intended and used the 23 Professional Services Agreements to pay medical doctors and chiropractors kickbacks for 24 their referrals to ASD-affiliated facilities, including the OTCs.” (Doc. 547 at ¶¶¶ 116, 200, 25 203). Allegations based on information and belief, however, require further factual 26 support. See Tesi v. ReconTrust N.A., 2013 WL 2635613, at *4 (D. Ariz. May 7, 2013) 27 (“[P]leading on information and belief, without more, is insufficient to survive a motion to 28 dismiss.”). And, as alleged, the TACC contains no such support. 1 The Court finds dismissal of the fraud counterclaims against Allen under Rule 9(b) 2|| is appropriate. The Court will dismiss the fraud counterclaims without prejudice. Although Allen joins Greg Maldonado’s Motion on all his arguments, Allen raises no 4|| further arguments as to the tortious interference with contract, unjust enrichment, or the || money had and received counterclaims (one, two, twelve, and thirteen). The Court rejected 6|| Greg Maldonado’s arguments as to those counterclaims and the Court will do the same for Allen. Those counterclaims therefore remain. 8 Accordingly, 9 IT IS HEREBY ORDERED that Defendant Sean Maldonado’s Motion to Dismiss (Doc. 633) is granted in part, as to Aetna’s state and federal RICO counterclaims 11 || (counterclaims five, six, seven, and eight), its ERISA counterclaim (counterclaim eleven), and its negligent misrepresentation counterclaim (counterclaim four) and denied in part, as to Aetna’s tortious interference with contract, fraud, civil conspiracy, aiding and 14]| abetting, unjust enrichment, and money had and received counterclaims (counterclaims 15 || one, two, three, nine, ten, twelve, thirteen). 16 IT IS FURTHER ORDERED that Defendant James Allen’s Motion to Dismiss || (Doc. 637) is granted in part, as to Aetna’s fraud and negligent misrepresentation || counterclaims (counterclaims three and four), its state and federal RICO counterclaims || (counterclaims five, six, seven, and eight), its civil conspiracy counterclaim (counterclaim 20 || nine), its aiding and abetting (counterclaim ten), and its ERISA counterclaim (counterclaim eleven). Those counterclaims are dismissed without prejudice. 22 IT IS FURTHER ORDERED that Defendant James Allen’s Motion to Dismiss 23 || (Doc. 637) is denied in part, as to Aetna’s tortious interference with contract, unjust 24 || enrichment, and money had and received counterclaims (counterclaims one, two, twelve, 25 || thirteen). 26 Dated this 13th day of April, 2023. 7 Ji ee La 28 norable' Diang4. Huretewa United States District Judge _5-