Fortitude Surgery Center LLC v. Aetna Health Incorporated, et al.

• Court: District Court, D. Arizona
• Decided: May 28, 2026
• Docket: 2:24-cv-02650
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Fortitude Surgery Center LLC, No. CV-24-02650-PHX-KML

10 Plaintiff, ORDER

11 v.

12 Aetna Health Incorporated, et al.,

13 Defendants. 14 15 Plaintiff Fortitude Surgery Center LLC (“Fortitude”) provided medical services to 16 patients and now seeks to recover payment for those services from defendants Aetna 17 Health, Inc. and Aetna Life Insurance Company (collectively, “Aetna”). Fortitude initially 18 filed a complaint asserting Employee Retirement Income Security Act (“ERISA”) and 19 state-law claims, but the court dismissed those claims in May 2025. Fortitude filed an 20 amended complaint and the court again dismissed all claims in September 2025, granting 21 leave to amend one final time. (Doc. 45.) Fortitude has now filed a Second Amended 22 Complaint (“SAC”) (Doc. 52), and Aetna has moved to dismiss some of the state-law 23 claims (Doc. 57).1 Its motion is granted. 24 I. Factual Background 25 Aetna is a health benefits insurer and insurance plan administrator that provided 26 and/or administered insurance plans for individuals who received services from Fortitude, 27 1 Aetna also requested the court dismiss a claim alleged under the Federal Employees 28 Health Benefits Act (“FEHBA”) (Doc. 57 at 1), but Fortitude voluntarily dismissed that claim (Doc. 60 at 1). 1 a surgical center. (Doc. 52 at 2-3.) Fortitude is out-of-network with Aetna, which in 2 practice means Fortitude “submit[s] claims to Aetna at [its] billed charges” rather than 3 using previously-negotiated rates for reimbursement. (Doc. 52 at 4.) Before providing 4 treatment, Fortitude contacted Aetna to verify the individual was covered by an Aetna- 5 insured or Aetna-administered plan and their coverage included out-of-network benefits 6 for the relevant treatment. (Doc. 52 at 6.) Fortitude also verified coverage for the specific 7 treatment via Aetna’s website, “personal communication between Fortitude and Aetna,” 8 and/or Aetna’s Clinical Policy Bulletins. (Doc. 52 at 6.) When Fortitude directly “sought 9 authorization from Aetna to provide [a specific] treatment,” Aetna either authorized the 10 treatment or, “more often, informed Fortitude that no preauthorization was necessary.” 11 (Doc. 52 at 7.) Fortitude also alleges it “verified Aetna’s position that the procedure was 12 considered reasonable and necessary.” (Doc. 52 at 6-7.) Fortitude would not have provided 13 the relevant services without Aetna’s authorization. (Doc. 52 at 8.) 14 Despite representing that coverage would apply to the services Fortitude planned to 15 provide, “Aetna began serially denying payment on the Fortitude bills” without warning 16 (Doc. 52 at 11) and without explanations sufficiently detailed for Fortitude to glean the 17 basis for the refusals or for the failed appeals Fortitude typically filed after a refusal (Doc. 18 52 at 56-57). Fortitude did, however, receive a letter sent on May 1, 2020 from an Aetna 19 claim investigator which requested information from Fortitude including medical records 20 of relevant patients and their treatment. (Doc. 52 at 11-12.) But Fortitude alleges it 21 responded in full and Aetna ultimately denied its claims “because Fortitude has common 22 ownership with certain other pain management providers in the Phoenix area which [] 23 previously had disputed unpaid claims with Aetna.” (Doc. 52 at 12.) 24 As a condition of receiving care at Fortitude, each patient assigned benefits and 25 rights to Fortitude, including the rights to obtain information regarding coverage and to 26 collect payments Aetna owed the member. (Doc. 52 at 8-9.) The validity of these 27 assignments is uncontested. (Doc. 52 at 9.) Based on those assignments, Fortitude filed this 28 suit asserting an ERISA claim on behalf of Aetna members on ERISA plans and state-law 1 claims on behalf of Aetna members on non-ERISA plans. The court dismissed the ERISA 2 claim in May 2025 (Doc. 30) and again in September 2025 (Doc. 45) because Fortitude 3 had not provided sufficient information specific to the plans at issue to support its claims. 4 The September order also dismissed the remaining state-law claims on jurisdictional 5 grounds, but pointed out some had fundamental flaws. (Doc. 45 at 8.) It granted leave to 6 amend one final time (Doc. 45 at 7) and Fortitude filed its SAC in November 2025 (Doc. 7 52). Aetna now moves to dismiss most of the state-law claims. (Doc. 57.) 8 II. Legal Standard 9 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 10 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009) (simplified). This is not a “probability requirement,” but a 12 requirement that the factual allegations show “more than a sheer possibility that a defendant 13 has acted unlawfully.” Id. A claim is facially plausible “when the plaintiff pleads factual 14 content that allows the court to draw the reasonable inference that the defendant is liable 15 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim 16 for relief . . . [is] a context-specific task that requires the reviewing court to draw on its 17 judicial experience and common sense.” Id. at 679. 18 III. Analysis 19 Aetna moves to dismiss claims four through seven (Doc. 57 at 6), which allege 20 unjust enrichment, promissory estoppel, negligent misrepresentation, and breach of 21 implied contract (Doc. 52 at 62-70). Although portions of the complaint are unredacted 22 solely in the version filed under seal, this order discusses only public portions. Fortitude 23 apparently decided not to amend its state-law claims at all, despite the court’s warning 24 many were “obviously flawed.” (Doc. 45 at 8.) 25 A. Unjust Enrichment 26 Fortitude alleges Aetna’s withholding of payment for Fortitude’s services to Aetna 27 patients constituted unjust enrichment. (Doc. 52 at 62.) Unjust enrichment requires a 28 plaintiff show (1) an enrichment, (2) an impoverishment, (3) a connection between the 1 enrichment and impoverishment, (4) a lack of justification for the enrichment and 2 impoverishment, and (5) the absence of a remedy provided by law. Ideasolv LLC v. Geante 3 Rouge SARL, No. CV-21-01905-PHX-MTL, 2022 WL 3042858, at *4 (D. Ariz. Aug. 2, 4 2022). 5 A party asserting a breach-of-contract claim may receive a remedy at law. Thus, 6 given the final element, when a party asserts both unjust enrichment and breach of contract, 7 the existence of a possible contractual remedy may foreclose their unjust enrichment claim. 8 Brooks v. Valley Nat. Bank, 548 P.2d 1166, 1171 (Ariz. 1976); see also Physicians Surgery 9 Ctr., 609 F. Supp. 3d 903, 939 (D. Ariz. 2022); Sutter Home Winery, Inc. v. Vintage 10 Selections, Ltd., 971 F.2d 401, 408 (9th Cir. 1992). But a party may bring an unjust 11 enrichment claim in the alternative “where her inability to enforce the contract leaves her 12 without an adequate remedy at law,” Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 833 13 (D. Ariz. 2016), and where the party has not received the benefit of the contractual bargain, 14 Adelman v. Christy, 90 F. Supp. 2d 1034, 1045 (D. Ariz. 2000). See also Lopez v. Musinorte 15 Ent. Corp., 434 F. App’x 696, 699 (9th Cir. 2011) (“a plaintiff can pursue an unjust 16 enrichment claim as an alternative theory of recovery in conjunction with a breach of 17 contract claim, subject, however, to only one recovery”). Because Fortitude pleads unjust 18 enrichment in the alternative (Doc. 52 at 62) and it remains possible a jury could find no 19 valid contract exists or Fortitude did not receive the benefit of its bargain, the claim is not 20 doomed by Fortitude also alleging a contractual remedy. See Victory Ins. & Fin. Servs. 21 LLC v. Ben Oberg Enters. LLC, No. CV-23-08015-PCT-DJH, 2025 WL 661879, at *4 (D. 22 Ariz. Feb. 28, 2025); Adelman, 90 F. Supp. 2d at 1045. 23 However, Aetna also argues Fortitude did not experience an impoverishment from 24 the unpaid services because it can recover payment for those services from its patients. 25 Dependable Nurses of Phoenix LLC v. Cigna Healthcare Inc., No. CV-20-01877-PHX- 26 SPL, 2021 WL 9597915, at *6 (D. Ariz. Feb. 2, 2021) (“When there is an opportunity to 27 recover from a third party, in this case the patients themselves, there is no 28 [impoverishment] to the plaintiff provider, a crucial element of unjust enrichment”). The 1 court noted this flaw in its prior order but Fortitude elected not to change the allegations in 2 the SAC. (Doc. 45 at 8.) Instead, Fortitude argues it is making this claim as the patients’ 3 assignee, “standing in the shoes of the patients.” (Doc. 58 at 5.) 4 Fortitude knew how to allege a claim based on its status as an assignee. The breach- 5 of-contract claim includes specific allegations showing Fortitude is asserting that claim in 6 that status. (Doc. 52 at 59.) But for unjust enrichment, the SAC alleges “Fortitude has been 7 significantly damaged,” “Fortitude incurred costs,” and “Fortitude will not have been 8 afforded an adequate remedy under law.” (Doc. 52 at 62-63.) Nowhere in the SAC does 9 Fortitude allege it is pursuing its unjust enrichment claim by standing in the shoes of its 10 patients; it does not allege the patients were impoverished or the patients have an absence 11 of a remedy at law. Accordingly, Fortitude could recover from its patients and has not 12 plausibly pleaded it suffered an impoverishment. See id. Its claim is dismissed. 13 B. Promissory Estoppel 14 Fortitude alleges Aetna promised to reimburse Fortitude for particular services “in 15 accordance with the terms of the Plan at issue” during pre-authorization conversations and 16 Fortitude relied on those promises to its detriment. (Doc. 52 at 64-65, 69.) It appears to 17 make this claim on its own behalf, not as an assignee, and does not explicitly plead the 18 claim in the alternative. (See Doc. 52 at 64-65 (alleging Aetna knew “Fortitude would rely 19 upon Aetna’s representations” and should be estopped from denying “its promise to 20 Fortitude”)). 21 A plaintiff can recover under the theory of promissory estoppel if he shows a 22 defendant made a promise, should have reasonably foreseen the plaintiff would rely on that 23 promise, and the plaintiff “actually relied on the promise to his detriment.” Higginbottom 24 v. State, 51 P.3d 972, 977 (Ariz. Ct. App. 2002); see Contempo Constr. Co. v. Mountain 25 States Tel. & Tel. Co., 736 P.2d 13, 16 (Ariz. Ct. App. 1987). “Arizona law prohibits an 26 action based on the promissory estoppel theory of liability if there is an express, written 27 contract on the same subject matter.” Bowman v. Honeywell Int’l, Inc., 438 F. App’x 613, 28 615 (9th Cir. 2011). But plaintiffs may allege inconsistent theories of recovery, Anderson 1 v. Edward D. Jones & Co., L.P., 990 F.3d 692, 701 (9th Cir. 2021), and “proceed 2 simultaneously with claims for promissory estoppel and breach of contract at the pleading 3 stage” in case it later becomes clear the contract is not applicable. Alpha GRP, Inc. v. 4 Subaru of Am., Inc., No. CV182133MWFMRWX, 2018 WL 5986989, at *12 (C.D. Cal. 5 June 8, 2018) (promissory estoppel claim could proceed despite contract because there 6 were “disputes as to whether a valid contract has been formed”); TM Techs. Inc. v. Hand 7 Techs. Inc., No. CV-18-00286-TUC-DCB, 2019 WL 4643798, at *5 (D. Ariz. Sept. 24, 8 2019) (promissory estoppel claim could proceed despite contract because promises at issue 9 may have been outside contract’s scope). 10 Although a promissory estoppel claim can be pleaded simultaneously with a breach- 11 of-contract claim, it cannot be premised on the same allegations giving rise to the contract 12 claim because then promissory estoppel would rely on the contract’s validity and 13 applicability. Mobile Tech, Inc. v. Hitachi Sols. Am., Ltd., No. SACV2100461CJCADSX, 14 2021 WL 9747619, at *4 (C.D. Cal. Dec. 28, 2021). The SAC makes exactly that forbidden 15 move in explicitly alleging Aetna promised to pay for services “in accordance with its 16 obligations under the [plans].” (Doc. 52 at 64; see also id. (“Aetna confirmed to Fortitude 17 that the [beneficiary] was covered by a plan . . . with out-of-network benefits for the 18 services”).) In other words, Fortitude’s promissory estoppel claim relies on Aetna’s 19 promise to abide by the terms of the insurance contracts. Although Fortitude now argues 20 Aetna’s promise to pay according to its plan obligations is “consistent with and 21 independent of” those plans (Doc. 58 at 9), it does not explain how. 22 Fortitude’s promissory estoppel claim fails for an additional, independent reason. 23 Though Fortitude has now properly pleaded which services Aetna agreed to cover, the 24 promise to cover those services according to plan obligations appears to be an 25 insufficiently-definite conditional statement because Fortitude admittedly did not specify 26 the relevant rates, conditions, or timeframe for the payment (see Doc. 52 at 7). R&R 27 Surgical Inst. v. Health Care Serv. Corp., No. CV232120DSFGJSX, 2023 WL 8008979, 28 at *3 (C.D. Cal. July 27, 2023) (dismissing claim because plaintiff did not allege a clear 1 promise to pay any specific rate); Dependable Nurses of Phoenix LLC, 2021 WL 9597915, 2 at *6 (plaintiff did not plead its reliance was reasonable where “it does not appear [the 3 insurer] ever promised a set rate”). 4 For both reasons, the motion to dismiss this claim is granted. 5 C. Negligent Misrepresentation 6 Fortitude asserts a negligent misrepresentation claim, alleging Aetna during pre- 7 authorization conversations knowingly “provided Fortitude with false or incorrect 8 information or omitted or failed to disclose material information to Fortitude relating to 9 Aetna’s intention to pay for the services Fortitude provided.” (Doc. 52 at 66-68.) 10 “Arizona recognizes a cause of action for negligent misrepresentation.” McAlister 11 v. Citibank (Arizona), a Subsidiary of Citicorp, 829 P.2d 1253, 1261 (Ariz. Ct. App. 1992) 12 (simplified). To plead this claim, the plaintiff must show: “(1) the defendant provided false 13 information in a business transaction; (2) the defendant intended for the plaintiff to rely on 14 the incorrect information or knew that it reasonably would rely; (3) the defendant failed to 15 exercise reasonable care in obtaining or communicating the information; (4) the plaintiff 16 justifiably relied on the incorrect information; and (5) resulting damage.” KB Home 17 Tucson, Inc. v. Charter Oak Fire Ins. Co., 340 O.3d 405, 412 n.7 (Ariz. Ct. App. 2014). 18 “A negligent misrepresentation claim cannot be based upon a promise of future 19 conduct”; instead, the plaintiff must prove misrepresentation of presently-existing facts. 20 Bowman, 438 F. App’x at 615. Fortitude characterizes certain misrepresentations as present 21 facts, for instance Aetna’s statements that each non-ERISA beneficiary was covered by 22 out-of-network benefits and that Fortitude was authorized to provide treatment. (Doc. 52 23 at 10.) But courts have found similar allegations center on an intention to pay rather than 24 present facts. For example, in McAlister v. CitiBank, the plaintiff alleged his bank made 25 misrepresentations in describing its policy, confirming the plaintiff would be allowed to 26 draw money up to his credit limit, and confirming deposits would be credited to his 27 account. 829 P.2d at 1261. The Arizona Court of Appeals held these statements “all 28 relate[d] to future events” and were not actionable misrepresentations. Id.; see also 1 Bowman, 438 F. App’x at 615 (affirming dismissal of negligent misrepresentation claim 2 where defendant stated plaintiff would begin work once she passed a background check 3 because that statement described a future action). Those statements, like Fortitude’s, can 4 be characterized as “statements of fact” but in substance relate to future events and 5 promises of payment. 6 Fortitude also implies fraud by alleging Aetna misrepresented statements knowingly 7 and with the intent to induce Fortitude’s actions. (Doc. 52 at 66-68.) Even without those 8 specific allegations, negligent misrepresentation claims are typically pleaded under Rule 9 9(b)’s fraud standard. Sweeney v. Darricarrere, No. 2:09-CV-00266-JWS, 2009 WL 10 2132696, at *12 n.109 (D. Ariz. July 14, 2009) (collecting cases); see also In re Arizona 11 Theranos, Inc., Litig., 256 F. Supp. 3d 1009, 1032 (D. Ariz. 2017). This heightened 12 pleading standard requires plaintiffs to “state with particularity the circumstances 13 constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Under that standard, plaintiffs must 14 identify “‘the who, what, when, where, and how of the misconduct charged,’ as well as 15 ‘what is false or misleading about the purportedly fraudulent statement, and why it is 16 false.’” United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054- 17 55 (9th Cir. 2011) (simplified); see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 18 F.2d 1393, 1401 (9th Cir. 1986). “[T]he absence of specification of any times, dates, places 19 or other details of that alleged fraudulent involvement is contrary to the fundamental 20 purposes of Rule 9(b).” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). 21 Fortitude has not alleged the circumstances of the alleged misrepresentations with 22 sufficient particularity. It has only generally identified the individuals who made the 23 statements (Aetna representatives), the time period (“prior to providing medical 24 treatment”), and the content (confirming certain individuals were insured by Aetna for 25 authorized services). (Doc. 52 at 6-7.) Even if those allegations describe the content of 26 those conversations particularly enough, it is not clear from the SAC where they took place, 27 which Aetna representatives participated, or when they occurred. Fortitude now alludes to 28 specific emails and phone calls (Doc. 58 at 12), but does not provide the relevant details in 1 the SAC or its briefing. Semegen, 780 F.2d at 731; see also Lui Ciro, Inc. v. Ciro, Inc., 895 2 F. Supp. 1365, 1375 (D. Haw. 1995) (general allegations that party made representations 3 over the course of two months via telephone and during meetings were not sufficiently 4 particular). Fortitude does not meet the 9(b) standard.2 5 Because Fortitude did not meet the Rule 9(b) pleading standard and did not 6 sufficiently plead misrepresentation of present facts, Aetna’s motion to dismiss this claim 7 is granted. 8 D. Breach of Implied Contract 9 Fortitude alleges the pre-treatment conversations in which Aetna authorized the 10 relevant treatments and the parties’ later conduct gave rise to implied contracts dictating 11 Aetna would reimburse Fortitude for the treatment it provided to Aetna patients. (Doc. 52 12 at 69.) Because Aetna failed to perform its reimbursement obligations, Fortitude alleges 13 the implied contract was breached. (Doc. 52 at 70.) 14 Valid contracts require an offer, acceptance, consideration, and intent by the parties 15 to be bound. Day v. LSI Corp., 174 F. Supp. 3d 1130, 1153 (D. Ariz. 2016), aff’d, 705 F. 16 App’x 539 (9th Cir. 2017). Contracts may be “implied,” i.e., “proved by circumstantial 17 evidence rather than by express written or oral terms,” but parties attempting to recover on 18 that theory must still show all elements of the contract existed. Pyeatte v. Pyeatte, 661 P.2d 19 196, 203 (Ariz. Ct. App. 1982); see Dependable Nurses of Phoenix LLC, 2021 WL

20 2 Additionally, though the parties do not address it, this claim appears barred by the 21 economic loss doctrine, which precludes tort recovery and “limit[s] a contracting party to contractual remedies” where the party only alleges economic damages. Miidas 22 Greenhouses, LLC v. Glob. Horticultural, Inc., 244 P.3d 579, 581-82 (Ariz. Ct. App. 2010) 23 (simplified); see also Ares Funding, L.L.C. v. MA Maricopa, L.L.C., 602 F. Supp. 2d 1144, 1150 (D. Ariz. 2009) (economic loss doctrine bars recovery “when the claim alleges only 24 economic damages resulting from an alleged breach of contract”) (simplified). Fortitude’s 25 negligent misrepresentation claims allege only economic damage and are explicitly premised on Aetna’s alleged breach of contract. (See Doc. 52 at 66-67.) Because the 26 doctrine bars negligent misrepresentation claims unless they “grow out of circumstances 27 independent of [the parties’] contractual relationship,” Finepoint Innovations, Inc., No. CV 04–1318–PHX–SMM, 2006 WL 3313688, at *3 (D. Ariz. Nov. 13, 2006), Fortitude has 28 not pleaded facts that would allow this claim to survive. 1 9597915, at *5 (“The terms of the implied-in-fact contract must be as ascertainable as those 2 in a written or oral contract.”). Courts have dismissed claims alleging breaches of implied 3 contracts where certain key terms, like rates of reimbursement, remain unclear. See, e.g., 4 Dependable Nurses of Phoenix LLC, 2021 WL 9597915, at *5. 5 Fortitude describes the terms of the implied contract too vaguely to properly allege 6 an implied contract claim. It alleges the parties impliedly contracted to follow the insurance 7 plans under which Fortitude is owed compensation. (Doc. 52 at 66; see Doc. 54-1.) But it 8 admits it did not know the terms of the implied contract when it provided treatment, and 9 even now apparently does not know the agreed-upon reimbursement rate. (Doc. 52 at 6; 10 see also Doc. 52 at 69-70 (alleging the rates were, “at a minimum, equivalent to the usual 11 and customary rate,” “alternatively” the reasonable value of the professional services 12 provided by Fortitude, the “usual and customary fees in that locality,” and “in accordance 13 with rates Aetna pays for other substantially identical claims submitted by other providers 14 as governed by the terms of the applicable Policy”).) Fortitude also fails to allege additional 15 key details, including whether the parties agreed on a timeframe for the reimbursements, 16 remedies, termination rights, or duration. The implied contract is therefore not properly 17 pleaded. See id. (no implied contract where court could not infer its terms, including the 18 rate of reimbursement); Pyeatte, 661 P.2d at 200-01 (no contract where parties did not 19 agree on timeframe, location, or cost). 20 Accordingly, Aetna’s motion to dismiss this claim is granted. 21 IV. Conclusion 22 Fortitude made no meaningful changes to its state-law claims in the SAC. Aetna’s 23 motion to dismiss is granted without leave to amend a third time. Ascon Props., Inc. v. 24 Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (noting a “district court’s discretion to 25 deny leave to amend is particularly broad where plaintiff has previously amended the 26 complaint”). 27 Accordingly, 28 IT IS ORDERED Aetna’s partial Motion to Dismiss (Doc. 57) is GRANTED. 1 IT IS FURTHER ORDERED as follows: 2 The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case 3 Management Report, which must be filed within 2 weeks of the date of this order. It is 4 the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint Case 5 Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule 6 26(f) meeting and assist in preparation of the Joint Case Management Report. 7 This case was filed on October 1, 2024, but has not yet progressed beyond the 8 pleading stage. The court’s general practice is to require the filing of dispositive motions 9 no later than two years after a case begins. Here, the presumptive deadline is sua sponte 10 extended such that dispositive motions are due December 1, 2026, but the parties are 11 warned that deadline will not be extended absent extraordinary circumstances. The parties 12 must propose case management deadlines that allow for the completion of all discovery 13 prior to that date. 14 The Joint Case Management Report shall contain the following information in 15 separately-numbered paragraphs. 16 1. The parties who attended the Rule 26(f) meeting and assisted in developing 17 the Joint Case Management Report; 18 2. A list of all parties in the case, including any parent corporations or entities 19 (for recusal purposes); 20 3. Any parties that have not been served and an explanation of why they have 21 not been served, and any parties that have been served but have not answered 22 or otherwise appeared; 23 4. A statement of whether any party expects to add additional parties to the case 24 or otherwise amend pleadings; 25 5. The names of any parties not subject to the court’s personal (or in rem) 26 jurisdiction; 27 6. A statement indicating whether the parties would prefer that the court hold a 28 case management conference before issuing a scheduling order—and, if so, 1 an explanation of why this would be helpful. 2 7. A short statement of the nature of the case (no more than three pages), 3 including a description of each claim, defense, and affirmative defense; 4 8. A discussion of whether plaintiff(s) is entitled to conduct discovery on the 5 ERISA claims (including conflict-of-interest discovery) and, if so, the 6 appropriate scope of discovery for ERISA claims, as well as the appropriate 7 scope of discovery for Counts 2-4, the state-law claims for which plaintiff(s) 8 is entitled to conduct discovery; 9 9. Proposed page limits for dispositive motions, responses, and replies. The 10 court anticipates briefing ERISA claims and state-law claims together, and 11 the parties should note the court does not permit the filing of a separate 12 statement of facts; 13 10. Whether the case is suitable for reassignment to a United States Magistrate 14 Judge for all purposes or suitable for referral to a United States Magistrate 15 Judge for a settlement conference; 16 11. The status of any related cases pending before this or other courts; 17 12. Proposed deadlines for each of the following events. In proposing deadlines, 18 the parties should keep in mind the Case Management Order will contain 19 deadlines to govern this case and once the dates have been set in the Case 20 Management Order and in light of the age of this case, the court will vary 21 them only upon a showing of good cause. A request by counsel for extension 22 of discovery deadlines in any case that has been pending more than two years 23 must be accompanied by a certification stating the client is aware of and 24 approves of the requested extension. The court does not consider lawyers’ 25 scheduling conflicts, settlement talks, or the scheduling of mediations to 26 constitute extraordinary circumstances warranting an extension. The parties 27 must propose the following: 28 a. If there is a dispute as to the need for and/or scope of discovery and/or 1 as to the standard of review regarding the ERISA claims, a deadline 2 for plaintiff(s) to file a motion, not to exceed seven pages, entitled 3 “Motion for ERISA Discovery/Standard of Review Determination,” 4 summarizing its position and a deadline for defendant(s) to submit a 5 seven-page response brief. No replies may be filed. These deadlines 6 should be set as soon as practicable. 7 b. A deadline for amending the pleadings and a deadline for any motion 8 to supplement the administrative record applicable to the ERISA 9 claims. 10 c. A deadline for the completion of fact discovery for both ERISA 11 claims (if discovery is allowed) and state-law claims. Discovery 12 requests must be served and depositions noticed sufficiently in 13 advance of the discovery cutoff date to ensure reasonable completion 14 by the deadline, including time to resolve further discovery disputes. 15 Absent extraordinary circumstances, the court will not entertain 16 discovery disputes after this deadline; 17 d. A deadline for filing the administrative record for ERISA claims; 18 e. A date by which the parties shall have engaged in face-to-face good 19 faith settlement talks; 20 f. Any other matters that will aid the court and parties in resolving this 21 case in a just, speedy, and inexpensive manner as required by Federal 22 Rule of Civil Procedure 1. 23 / 24 / 25 / 26 / 27 / 28 / 1 IT IS FURTHER ORDERED the parties shall file a proposed Case Management □□ Order — ERISA Case containing all the proposed dates, adapted as necessary because this || case involves both ERISA and state-law claims, using the form available on the court’s website. The proposed Case Management Order must also be emailed in Word format to 5 || Lanham_Chambers@azd.uscourts.gov. 6 Dated this 28th day of May, 2026. 7

9 UW tla MMA Honorable Krissa M. Lanham 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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