40 F.4th 1295
11th Cir.2022Background
- MSP Recovery (a set of collection entities) sued several Metropolitan insurers under the Medicare Secondary Payer (MSP) Act, asserting assigned claims that insurers failed to reimburse conditional payments made by Medicare Advantage Organizations (MAOs).
- The operative amended complaint attached Exhibit A: a large chart listing hundreds of claims identified by comparing MAO claim data to insurers’ CMS reports and certain reported settlements; Exhibit A showed beneficiary IDs, insurer, policy numbers, and whether responsibility arose from no-fault contracts or settlements.
- The district court dismissed under Rule 12(b)(6), concluding the complaint failed to plausibly allege a “demonstrated responsibility” to pay (the MSP Act prerequisite) and that Exhibit A could not substitute for factual allegations; the court also denied leave to amend.
- On appeal the Eleventh Circuit held the district court erred in refusing to consider Exhibit A (attachments incorporated by reference count at the motion to dismiss stage) and that, taken together, the complaint and Exhibit A plausibly alleged demonstrated responsibility via contractual no-fault obligations, settlements, and CMS reporting.
- The Eleventh Circuit reversed and remanded for further proceedings; the court declined to decide alternative defenses (Rule 41(a)(1)(B) two-dismissal bar and personal jurisdiction) because the district court had not ruled on them.
- Judge Jordan concurred in the judgment but would have affirmed dismissal and remanded solely to require the district court to grant leave to amend; he criticized Exhibit A as providing inadequate notice but noted a properly amended complaint could have cured defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint plausibly alleged that Defendants had a "demonstrated responsibility" to pay under the MSP Act | MSP Recovery: Exhibit A plus allegations show contractual no-fault obligations, settlements, and CMS self-reporting that demonstrate responsibility for listed claims | Defendants: Allegations are conclusory, Exhibit A cannot substitute for factual allegations, and CMS filings/contractal labels alone are insufficient | Court: Reversed district court — complaint together with Exhibit A plausibly alleged demonstrated responsibility at motion to dismiss stage |
| Whether the district court could consider Exhibit A on a 12(b)(6) motion | MSP Recovery: Exhibit A is attached and incorporated by reference; courts may consider attachments | Defendants: Exhibit A is just a plaintiff-created chart and cannot stand in for pleaded facts | Court: Exhibit A (attached and incorporated) should have been considered on the motion to dismiss |
| Whether the Rule 41(a)(1)(B) two-dismissal rule bars this suit | MSP Recovery: Prior dismissals involved different plaintiffs/claims; this action is not barred | Defendants: Two prior voluntary dismissals of related suits trigger the two-dismissal bar | Court: Not decided on appeal because district court did not rule; remand for district court to address |
| Whether district court lacked personal jurisdiction over two Defendants | MSP Recovery: CMS reporting and identification errors explain naming; jurisdiction exists or can be proven on remand | Defendants: Some defendants do not write Florida business or do not exist; no personal jurisdiction | Court: Not decided on appeal because district court did not rule; remand for district court to address |
Key Cases Cited
- Glover v. Liggett Grp., Inc., 459 F.3d 1304 (11th Cir. 2006) (MSP Act purpose and demonstrated-responsibility prerequisite)
- Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016) (MSP Act allocation of primary vs secondary payment responsibility)
- MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351 (11th Cir. 2016) (a contractual obligation can satisfy demonstrated responsibility)
- MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 F.3d 1312 (11th Cir. 2019) (private cause of action elements under § 1395y(b)(3)(A))
- MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 950 F.3d 764 (11th Cir. 2020) (settlement can demonstrate responsibility)
- MSP Recovery Claims, Series LLC v. ACE Am. Ins. Co., 974 F.3d 1305 (11th Cir. 2020) (CMS filings evidence constructive knowledge of primary-payor responsibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility and fair notice pleading standard)