Rita CAMPBELL, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, et al., Defendants.
Civil Action No.: 14-0892(RC)
United States District Court, District of Columbia.
Signed September 16, 2015
RUDOLPH CONTRERAS, United States District Judge
here. See Def.‘s Mot. at 17-18. Unfortunately for OPM, its recitation fares no better under this prong of the analysis.
The public interest is, of course, best served when government agencies act lawfully. But the inverse is also true: the public interest is harmed when the Government ham-handedly exercises its responsibilities. It confounds all logic for OPM to argue—as it appears to do—that adherence to the eighty percent limitation absolves it of the duty to comply with Constitutional due process. It does not. Applying the law in a way that violates the Constitution is never in the public‘s interest and the Court fails to see how this case is any exception. As our Circuit Court itself noted: “The Constitution does not permit [the Government] to prioritize any policy goal over the Due Process Clause.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). Accordingly, I find that the public interest is vindicated by restoring the FERS benefits from which plaintiff appears, upon preliminary review of the facts, to have been divested without adequate process of law.
CONCLUSION
Thus, for all of the foregoing reasons, the Court DENIES OPM‘s Motion to Dismiss for Lack of Jurisdiction, DENIES plaintiff‘s Motion to Strike Defendant‘s Supplemental Memorandum, GRANTS plaintiff‘s Motion for a Preliminary Injunction, and ORDERS that OPM REINSTATE plaintiff‘s disability benefits under the Federal Employee Retirement System. Once plaintiff‘s benefits are reinstated, OPM is ENJOINED from terminating those benefits until such time as OPM makes a finding as to plaintiff‘s eligibility for reinstatement upon his reapplication, in January 2016, or until otherwise directed by Order of this Court. An Order consistent with this decision accompanies this Memorandum Opinion.
Raphaelle E. Monty, Danielle J. Carter, Sidley Austin LLP, Scott McIntosh, Quarles & Brady LLP, Daly D.E. Temchine, Epstein, Becker and Green, P.C., Washington, DC, David G. Jorgensen, Thomas M. Buchanan, Winston & Strawn LLP, Chicago, IL, Patrick J. Murphy, Quarles & Brady LLP, Milwaukee, WI, Eric Damian Welsh, Sarah F. Hutchins, Parker Poe Adams & Bernstein, LLP, Charlotte, NC, Harvey Kurzweil, Kelly A. Librera, Winston & Strawn LLP, New York, NY, Neal R. Marder, Winston & Strawn LLP, Los Angeles, CA, for Defendants.
HealthExtras, LLC, pro se.
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
From 2000 through 2014, Plaintiff Rita Campbell was enrolled in the HealthExtras benefit program, which purported to provide her with group disability insurance coverage. Ms. Campbell now believes that the policy she paid for was illegal and worthless, and she has brought this putative class action on behalf of herself and similarly situated residents of the District of Columbia against seven companies that she believes contributed to and profited from the sale of illusory insurance policies. Ms. Campbell never submitted a claim for coverage and is no longer enrolled in the program, but she seeks to recover her premium payments and damages, alleging that Defendants sold her insurance coverage that they never intended to honor, charged her premiums in excess of her contractual obligation, and failed to provide truthful information about the program. In her five-count complaint, Ms. Campbell asserts numerous violations of the D.C. Consumer Protection Procedures Act (“CPPA“), and she alleges that Defendants either breached their contractual obligations or, alternatively, that Defendants
II. FACTUAL ALLEGATIONS
This case marks one of at least eleven closely related actions filed across the country seeking to recover premium payments and damages in relation to the HealthExtras benefit program (“the program“), which plaintiffs in each case allege was marketed and sold to them in violation of state law.1 This particular action focuses on allegations that Defendants advertised and purported to sell disability insurance coverage through the HealthExtras benefit program to D.C. residents while violating D.C. insurance laws and without any intent to provide the paid-for coverage.
In 1999 or 2000, Ms. Campbell received marketing materials about the HealthExtras benefit program from Defendant HealthExtras, Inc., now known as Catamaran Health Solutions, LLC (“Catamaran“).2 See 1st Am. Compl. ¶ 53, ECF No. 29. Catamaran had paid the actor Christopher Reeve to serve as the face of its marketing campaign, and it reached potential customers by entering into agreements with credit card companies that allowed Catamaran to access cardholders’ financial information and to send marketing flyers to selected cardholders along with their credit card statements. Id. ¶¶ 41, 47. Ms. Campbell expressed interest in the program, which included disability insurance packaged together with an out of area emergency accident and sickness medical expense benefit. Id. ¶¶ 56, 66. As a result, Catamaran
Ms. Campbell then enrolled in the program and agreed to pay premiums on a monthly or annual basis, with her premiums being charged to her credit card. Id. ¶¶ 60, 63. Catamaran‘s Member Services subsequently sent Ms. Campbell an enrollment letter commending her for “hav[ing] armed [her]self with one of the most exciting and affordable disability plans, found anywhere in America today.” Id. ¶ 61. The enrollment confirmation letter also bore Christopher Reeve‘s picture and attributed to him the statement that “[b]ecause lives can change in an instant, as mine did, you should have the additional security for yourself and your family that HealthExtras can provide.” Id.
Defendant Virginia Surety Company, Inc. (“Virginia Surety“) served as the underwriter for Ms. Campbell‘s $2,500 medical expense benefit during the entire period of her enrollment. Id. ¶ 68. Defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union“) replaced non-party Federal Insurance Company as the underwriter of her disability insurance policy effective January 1, 2005. Id. ¶¶ 47(f), 67. Ms. Campbell also alleges that Catamaran effectively acted as an underwriter for her disability insurance policy as of July 2000, when it agreed with “at least one insurer” that Catamaran would “pay disability benefits to any person who does not qualify as permanently disabled, but who is nonetheless unable to perform the material and substantial duties of such person‘s regular occupation.” Id. ¶ 125.
Because Catamaran was not a licensed insurance broker in the District of Columbia, the company paid “real licensed broker[s],” like Defendant Alliant Services Houston, Inc. (“Alliant Services“), to use their names on correspondence and program documents. Id. ¶ 158. The Program Summary that Ms. Campbell received from Catamaran identified Alliant Services’ corporate predecessor as the “Program Administrator,” and her payment notices listed Alliant Services as the “Broker of Record.”3 Id. ¶ 19.
The materials that Ms. Campbell received in 2004 also stated that “if any conflict should arise between the contents of this Description of Coverage and the Master Policy SRG 9540519 or if any point is not covered herein, the terms and conditions of the Master Policy will govern in all cases.” Id. ¶ 70. But Ms. Campbell claims that “she has never been provided a copy of Master Policy SRG 9540519,” and she suspects that “[w]hat little coverage escapes C11695DBG may be further trumped and negated by Master Policy SRG 9540519.” Id. ¶¶ 71, 76. Ms. Campbell notes that “[a]lthough the coverage description disclosed some limitations on the policy ... [no] Defendant[s] disclosed ... [that] there was no intention to pay disability benefits that fell within the terms of coverage.” Id. ¶¶ 81-82.
In fact, Ms. Campbell claims, Catamaran, National Union, and Defendant American International Group, Inc. (“AIG“) developed the policies in question “with no intent to pay ever [sic] disability claims and the specific intent to deny any disability claims made by victims of the HealthExtras Scheme.” Id. ¶ 107. Public records show that an individual in California who was rendered a quadriplegic had his claim denied by National Union, and that another individual in South Carolina had his claim denied by National Union after he was rendered a paraplegic. Id. ¶ 111. “Upon information and belief,” Ms. Campbell further asserts that “there are thousands of these unfair and unconscionable denials which are not in the public record.” Id. ¶ 114.
Although Ms. Campbell alleges that she was never provided with a copy of the governing Master Policy, on an unspecified date, she did receive the “Master Application for Blanket Accident Insurance Policy” for Master Policy 9540519.4 Master Application, Pl.‘s Ex. B at 2-3, ECF No. 29-2. The Master Application is printed on letterhead naming National Union and Defendant AIG, doing business as AIG Group “Insurance Trust, (“AIG” or “the Trust“). 1st Am. Compl. ¶ 77. The document describes a policy with an effective date of September 2004, names the Trust as the policyholder, and includes policy
She asserts that the Trust is a “sham organization[]” that it does not constitute a “group that was or is eligible to purchase group disability insurance under District of Columbia law,” and that the Trust was created so that Defendants could “avoid[] regulatory supervision and oversight.” id. ¶¶ 93, 95, 97. Defendants purported to sell group insurance so that they were able to issue a single, Master Policy to themselves. See id. ¶¶ 89, 93. Individual insureds were provided only with certificates of insurance that summarized their coverage terms and rights under the Master Policy, which Defendants did not provide. See id. ¶ 89. “Because there was no legitimate group, there was no one to look out for the interests of the persons paying for the purported disability coverage,” and policy-holders had “no mechanism for learning, short of becoming disabled themselves and being denied coverage, that the purported insurance coverage they were being sold was illusory and worthless.” id. ¶¶ 45, 100.
Specifically, Ms. Campbell alleges that Defendants issued her policy in violation of
Ms. Campbell further alleges that Defendants’ marketing materials for the program failed to disclose that less than 15% of the premiums that she paid for disability coverage actually went to the underwriter, National Union. id. ¶¶ 79-80. As a consequence, she believes that “[r]oughly 80% of the insurance premiums paid to the HealthExtras [program] by the Plaintiff has been collected by [Catamaran] and has not paid for insurance coverage or paid for anything that would benefit the Plaintiff.” id. ¶ 80. Ms. Campbell also complains that Defendants’ “direct mail advertisements did not disclose that the program was illegal, fraudulent and illusory, and that harsh exclusions limited almost all claims, or that there was no intent to pay disability claims under the policy.” id. ¶ 112.
On at least two unspecified dates during the fourteen-year period that Ms. Campbell was enrolled in the program, her premiums were increased “without the approval of DISB,” and she was charged an amount that exceeded her contractual obligation without her authorization. id. ¶¶ 27, 65. On August 1, 2012, Catamaran transferred Ms. Campbell‘s disability policy to Defendant HealthExtras LLC,5 which thereafter “service[d], administer[ed], collect[ed] and allocate[d] the premiums,” id. ¶ 11, until the benefit program was terminated at the conclusion of 2014, Notice of Policy Terminations, Pl.‘s Ex. A, ECF No. 43-1.
Ms. Campbell asserts that “each Defendant received money and profited from the illegal” program. 1st Am. Compl. ¶ 117. Specifically, she alleges that Catamaran
In May 2014, a few months before her coverage was terminated, Ms. Campbell initiated this putative class action by filing a complaint on her own behalf and on behalf of similarly situated residents of D.C. who participated in the HealthExtras program. See generally Compl., ECF No. 1. After Defendants filed motions to dismiss the matter, Ms. Campbell rendered the motions moot by filing a first amended complaint in August 2014. See generally 1st Am. Compl.
Count I of the amended complaint asserts a claim of unjust enrichment based primarily on the allegation that Defendants profited from the sale of “illegal and void” coverage that was worthless to purchasers. id. ¶¶ 167-84. Count II alleges that Defendants breached the terms of their contracts and the duty of good faith and fair dealing by charging Ms. Campbell more than her contractual obligation and by selling HealthExtras policies while failing to reveal that they were “illegal and of little value.” id. ¶¶ 186-94. Count III is a claim of conversion premised on Defendants raising her premium and charging her more than her contractual obligation. id. ¶¶ 196-200. Count IV asserts numerous violations of the CPPA, id. ¶¶ 202-27, and Count V is a claim of money had and received also based on the unauthorized premium increases, id. ¶¶ 229-33. As relief, Ms. Campbell seeks a declaration that the disability policy is illegal, an award of actual damages, treble damages, statutory damages, and punitive damages, an injunction prohibiting Defendants from engaging in unlawful activities in D.C., and attorneys’ fees, costs, and expenses. Id. at 60. She also seeks “restitution in the form of disgorgement of all revenues, earnings, profits, compensation and benefits which District of Columbia residents have paid....” id. ¶ 184.
Defendants now seek to dismiss all claims pursuant to
III. LEGAL STANDARDS
A. Rule 12(b)(1)
The D.C. Circuit has explained that a motion to dismiss for lack of standing constitutes a motion under
Because subject matter jurisdiction focuses on the Court‘s power to hear a claim, the Court must give the plaintiff‘s factual allegations closer scrutiny than would be required for a
B. Rule 12(b)(6)
The
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff‘s factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff‘s legal conclusions as true, see id. nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. In deciding a motion to dismiss under
IV. ANALYSIS7
A. Motion to Dismiss Pursuant to Rule 12(b)(1)
Defendants first argue that this matter must be dismissed pursuant to
When assessing standing at this stage of litigation, the Court will “accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff‘s favor,” but it will “not assume the truth of legal conclusions, nor ... accept inferences that are unsupported by the facts set forth in the complaint.” Arpaio v. Obama, 797 F.3d 11, 18 (D.C. Cir. 2015) (internal quotation marks and citations omitted). “[T]hreadbare recitals of the elements of standing, supported by mere conclusory statements, do not suffice,” and “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim of standing that is plausible on its face.” Id. (internal quotation marks and citations omitted). Additionally, “a plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
Ms. Campbell‘s first alleged injury is premised on her having paid for an illusory insurance policy that Defendants did not intend to honor. Pl.‘s Opp‘n at 55; see also 1st Am. Compl. ¶ 82 (alleging that while “the coverage description disclosed some limitations on coverage under the policy, ... [none of the] Defendant[s] disclosed ... that there was no intention to pay disability benefits that fell within the terms of coverage.“). She argues that “because the HealthExtras Scheme was designed to deny all disability claims, through a list of undisclosed conflicts and exclusions maintained in a Master Policy the insureds are never shown, in reality the payment of premiums purchased only the contractual right to file a legal action against Defendants ... not disability insurance.” Pl.‘s Opp‘n at 14. A review of Ms. Campbell‘s complaint, however, reveals that her first assertion of injury is supported by mere conjecture, not by factual allegations that would render her alleged injury plausible.
Significantly, Ms. Campbell never submitted a claim for coverage to Defendants or had a claim denied, and her complaint does not identify a single instance in which any insured had his or her claim denied on the basis of secret exclusions contained only in the Master Policy.10 Although Ms. Campbell now argues that if she had submitted a disability claim that it would have been denied because Defendants would have applied secret exclusions and restrictions from the Master Policy, according to her complaint, “she has never been provided a copy of [the] Master Policy,” she does
Such conjecture cannot replace the type of factual allegations necessary to transform a speculative chain of possibilities into a plausible allegation of concrete, actual injury in fact. Cf. Clapper v. Amnesty Int‘l USA, 133 S. Ct. 1138, 1148 (2013) (finding no actual or imminent injury in fact where plaintiffs’ “theory of standing ... relies on a highly attenuated chain of possibilities,” and they “merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired“); Obama v. Klayman, 800 F.3d 559, 569-70 (D.C. Cir. 2015) (Sentelle, J., dissenting in part on other grounds) (holding that plaintiff‘s assertion that the government must have been collecting their phone records because the collection was large and plaintiff‘s used a big carrier was mere “conjecture” that fails to show “actual or imminent” injury in fact necessary to establish standing); Weaver v. Aetna Life Ins. Co., No. 3:08-CV-00037, 2008 WL 4833035, at *3 (D. Nev. Nov. 4, 2008) (dismissing unjust enrichment claim for lack of standing where the plaintiff alleged that she “paid premiums for a nonexistent policy,” because “one could not deem a policy nonexistent unless she were improperly denied benefits“), aff‘d, 370 F. App‘x 822 (9th Cir. 2010).11
Ms. Campbell protests that this “precise argument has already been rejected in a related case.” Pl.‘s Opp‘n at 56 (citing Petruzzo v. HealthExtras, Inc., No. 5:12-CV-113-FL, 2013 WL 4517273 (E.D.N.C. Aug. 23, 2013)). In the Petruzzo opinion on which she relies, the District Court for the Eastern District of North Carolina was presented with nearly identical claims of deceptive trade practices, unjust enrichment, and breach of the duty of good faith and fair dealing brought against many of the same Defendants and premised largely
After the opinion was issued, however, the court received another motion to dismiss “raising new argument that plaintiffs lack standing to sue,” because a North Carolina statute expressly provided that an insurance policy that violated the applicable state requirements nevertheless “shall be held valid but shall be construed as provided” by statute. Petruzzo v. Nat‘l Union Fire Ins. Co. of Pittsburgh, Pa., No. 5:12-CV-113-FL, 124 F. Supp. 3d 642, 644-45 (E.D.N.C. May 22, 2015). The Petruzzo court thus determined that “Plaintiffs have suffered neither a concrete nor imminent injury, because the insurance policies supplied through enrollment in the Disability Benefit and Health benefit are valid and enforceable under North Carolina law, despite the alleged deficiencies.” Id. at 652. The court further explained that “plaintiffs never attempted to collect benefits under either policy,” and that under state law, even if they had, their policies were “valid and enforceable by plaintiffs” until their enrollment in the program ended. Id. at 653. It therefore dismissed all claims against all defendants for lack of standing. Id. at 655-56.
In this case, the D.C. Code section that Ms. Campbell alleges Defendants violated contains identical language to the North Carolina statute, dictating that nonconforming insurance policies issued in violation of the statute “shall be held valid but shall be construed as provided in this section.”
Ms. Campbell notes that her claim of injury here is somewhat different than in Petruzzo, however, in that it is based not on the unenforceability of her policy under D.C. law, but on the fact that she would
Accordingly, the Court finds that Ms. Campbell‘s allegation that the Master Policy may have contained undisclosed exclusions that she believes Defendants would have used to deny any claims, had she made them, does not constitute the type of concrete, particularized, actual injury that supports Article III standing, and the Court lacks jurisdiction to hear such a claim.
This does not end the matter, however, for although Ms. Campbell argued that her first asserted injury “forms the basis of the transaction at issue and many of the claims raised,” Pl.‘s Response at 3, her allegation regarding paying for an illusory policy is only one of three alleged injuries in this case. She also argues that she has standing to bring all of her claims on the grounds that Defendants charged her premiums in excess of her contractual obligation on at least two occasions,13 and she asserts that she has standing to bring her CPPA claim because Defendants violated her statutory right to truthful information about consumer goods and services. Pl.‘s Opp‘n at 55-57.
Defendants do not appear to challenge the adequacy of either of these alleged injuries for standing purposes, and the Court agrees with Ms. Campbell that unauthorized charges and allegedly material misrepresentations about the program constitute injuries in fact for standing purposes. See In re APA Assessment Fee Litig., 766 F.3d 39, 47 (D.C. Cir. 2014) (holding that plaintiffs may recover mistaken overpayments via an unjust enrichment claim);
B. Motion to Dismiss Pursuant to Rule 12(b)(6)
Defendants next argue that Ms. Campbell‘s complaint must be dismissed in its entirety pursuant to
ure
1. Statutes of Limitations
In a motion to dismiss joined by all Defendants, Virginia Surety argues that all of Ms. Campbell‘s claims, with the exception of the money had and received claim, are barred by applicable three-year statutes of limitations.15 Virginia Surety Mem. Supp. Mot. Dismiss at 12-19, ECF No. 33-1. Defendants argue that because the limitations periods began to run on all of Ms. Campbell‘s claims at the time of the injury or breach, her claims accrued in 2000 when she purchased coverage based on Defendants’ alleged misrepresentations, or alternatively, in 2004 when she admits to having received actual notice that the Trust was the policyholder, that a list of restrictive exclusions limited her coverage in a manner contrary to Defendants’ representations, and that her coverage was subject to the terms of the undisclosed Master Policy. Id. at 13-16. Defendants contend that Ms. Campbell‘s claims thus expired no later than 2007, and to the extent that her claims are premised on unauthorized premium increases on unspecified dates, her “lack of transparency does not rescue her conversion claim from the statute of limitations.” Id. at 16 n.6.
Ms. Campbell disputes Defendants’ timeliness arguments, arguing both that the limitations period did not begin to run until shortly before she filed her complaint and that various tolling doctrines apply. Pl.‘s Opp‘n at 61-72. She maintains, for example, that the continuing tort doctrine would toll the limitations period as to all of her claims because Defendants’ “long-running campaign of misinformation” and their charging of her credit card “ceased months after she filed her initial complaint.” Id. at 63-66. Ms. Campbell next asserts that her claims of conversion and breach of contract and the duty of good faith and fair dealing are also timely brought under the discovery rule, because the 2004 description of coverage that she received did not put her on notice “of the involvement of all of the defendants in the Scheme or the distribution of portions of her premium payments to Defendants other than HealthExtras.” Id. at 63-70. As to her CPPA claim, Ms. Campbell contends that because she continuously renewed her policy through 2014 “pursuant to Defendants’ misrepresentations, omissions, and false impressions,” because the Defendants continuously charged her the wrong amount, because she still has not received a copy of the Master Policy, and because she was not aware until filing her
It is well-established that “[b]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014); see also Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (“[C]ourts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.“). From the face of Ms. Campbell‘s complaint, however, the Court is unable to determine whether her claims are, in fact, time-barred.
As to Ms. Campbell‘s claim that she was charged greater-than-authorized premiums, she does not specify when between 2000 and 2014 those charges occurred, leaving open the possibility that such acts occurred within three years of the filing of her complaint. Drawing all inferences in Ms. Campbell‘s favor, it is also possible that Defendants continued, unbeknownst to Ms. Campbell, to misrepresent the validity of the group and the percent of premiums that would go towards insurance, to obscure the interrelationships between Defendants, to falsely imply that they were licensed insurance companies, to misrepresent the identity of the insurer and underwriters, and to violate DC insurance regulations through 2014. Defendants may ultimately prove correct in their assertion that the allegedly unauthorized premium increases occurred more than three years before the filing of Ms. Campbell‘s complaint, or that she was on notice of the facts giving rise to her claims more than three years before filing this suit. But because the Court cannot determine such matters conclusively from the face of the complaint, the motion to dismiss all claims as untimely must be denied.
The Court therefore finds that dismissal of Ms. Campbell‘s claims on statute of limitations grounds at this time would be improper. See de Csepel v. Republic of Hungary, 714 F.3d 591, 608 (D.C. Cir. 2013) (holding that if a plaintiff‘s potential “rejoinder to the affirmative defense is not foreclosed by the allegations in the complaint, dismissal at the Rule 12(b)(6) stage is improper” (internal quotation marks and citations omitted)); see also Floyd v. Lee, 968 F. Supp. 2d 308, 326 (D.D.C. 2013) (holding that where it was “not clear from the face of the complaint” when the event triggering the limitations occurred, “the court need not decide what would follow from the conclusion” that the limitations period began on a particular date).
Accordingly, the Court proceeds to consider Defendants’ final argument in favor of dismissal: that each of Ms. Campbell‘s claims must be dismissed pursuant to
2. Unjust Enrichment (Count I)
Ms. Campbell‘s complaint asserts three common law claims, the first of which is for unjust enrichment, as an alternative to her breach of contract claim.16 Specifical-
ly,
In their motions to dismiss, Defendants first argue that Ms. Campbell‘s unjust enrichment claim fails as a matter of law because
Under D.C. law, “[u]njust enrichment occurs when: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the defendant‘s retention of the benefit is unjust.” Fort Lincoln Civic Ass‘n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1076 (D.C. 2008) (quoting News World Comme‘ns, Inc. v. Thompsen, 878 A.2d 1218, 1222 (D.C. 2005)). “In such a case, the recipient of the benefit has a duty to make restitution to the other person....” 4934, Inc. v. D.C. Dep‘t of Emp‘t Servs., 605 A.2d 50, 55 (D.C. 1992) (citing Restatement (First) of Restitution § 1 cmt. c (1937)). A claim that unjust enrichment occurred is context-specific, and will require consideration of “the particular circumstances giving rise to the claim” that the retention of a given benefit is unjust. Peart v. D.C. Hous. Auth., 972 A.2d 810, 813-14 (D.C. 2009).
ment claim is permissible. See In re APA Assessment Fee Litig., 766 F.3d 39, 46 (D.C. Cir. 2014) (holding that existence of a contract did not bar plaintiff‘s unjust enrichment claim where contract did not authorize the charge in question, which “was instead an extra-contractual payment falling outside the ‘scope’ of the governing contracts,” such that the contract “pose[d] no obstacle to an unjust enrichment claim seeking to recover fees paid“); see also Jordan Keys & Jessamy, LLP v. St. Paul Fire & Marine Ins. Co., 870 A.2d 58, 63-65 (D.C. 2005) (“One who has entered into a valid contract cannot be heard to complain that the contract is unjust, or that it unjustly enriches the party with whom he or she has reached agreement. The equities may be quite different, however, where A, who claims that B has been unjustly enriched at A‘s expense, has a contract with C rather than with B.“); McWilliams Ballard, Inc. v. Broadway Mgmt. Co., 636 F. Supp. 2d 1, 9 n. 10 (D.D.C. 2009) (“While defendants are correct that plaintiff ultimately cannot recover under both a breach of contract claim and an unjust enrichment claim pertaining to the subject matter of that contract, at this juncture, plaintiff‘s unjust enrichment claim is an alternate theory of liability which it may pursue.“).
The first circumstance that Ms. Campbell argues makes Defendants’ retention of her premium payments unjust is the fact that the policy she paid for was illegal, void, and worthless under D.C. law. See 1st Am. Compl. ¶¶ 169-82 (alleging that Defendants marketed insurance that was illegal under
Ms. Campbell also argues, however, that Defendants were unjustly enriched on two occasions when they received and retained higher-than-authorized premium payments. Pl.‘s Opp‘n at 25. She alleges—albeit vaguely—that on two occasions, Defendants charged her credit card for premium payments in excess of the authorized amount. Alliant Services argues that Ms. Campbell‘s failure to allege that she made a direct payment to Alliant Services constitutes a failure to state a claim, but neither of the cases it cites in support of this assertion holds that a benefit unjustly retained must have been directly conferred to state a claim of unjust enrichment. See Edwards v. Ocwen Loan Servicing, LLC, 24 F.Supp.3d 21, 29 (D.D.C. 2014) (holding that where complaint did not clearly allege the benefit wrongfully retained, and where allegations of retention lacked factual support and were premised on the existence of a contractual agreement that foreclosed an unjust enrichment claim, the claim must be dismissed); Minebea Co. v. Papst, 444 F.Supp.2d 68, 186 (D.D.C.2006) (holding that unjust enrichment claim premised on the paid-for purchase of a patent portfolio failed where all parties consented to the purchase, substantial consideration was paid, and no direct benefit was conferred to the purchaser).
To the contrary, a number of decisions from this Court have expressly held that a benefit indirectly conferred on a defendant can support an unjust enrichment claim. See, e.g., JSC Transmashholding v. Miller, 70 F.Supp.3d 516, 523 n. 5 (D.D.C.2014) (holding that the theory of unjust enrichment can apply to payments conveyed to a defendant through a third-party intermediary); U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F.Supp.2d 129, 142 (D.D.C.2010) (holding that where
This leaves the Court with the question of whether Ms. Campbell has plausibly alleged that Defendants’ retention of this benefit was unjust under the circumstances. According to Ms. Campbell‘s complaint, although she “agreed to pay premiums,” on at least two occasions, her “credit card and bank accounts were debited for an increased premium amount [she] did not authorize and was not authorized under District of Columbia law and therefore [she] had [her] personal property or money unlawfully taken.” 1st Am. Compl. ¶¶ 27, 60. To the extent that Ms. Campbell alleges that Defendants charged her more than they were authorized by her or by D.C. law, she has plausibly stated that Defendants’ retention of the unauthorized portion of her premium payments was unjust. See In re APA Assessment Fee Litig., 766 F.3d 39, 48 (D.C.Cir.2014) (explaining that where a party agrees to be billed one amount but is then intentionally overcharged, the party can bring an unjust enrichment claim to recover the amount of his overpayment). Accordingly, the Court will not dismiss Ms. Campbell‘s unjust enrichment claim for failure to state a claim under
3. Conversion (Count III)
Ms. Campbell‘s second common law claim alleges that Defendants have appropriated her money for their own use and have exercised dominion and control over the premium amounts charged to her that exceeded her contractual obligation and fell outside the terms of her agreement to pay premiums. 1st Am. Compl. ¶¶ 196-200. Defendants argue that this conversion claim must be dismissed because it is impermissibly based on an al- leged
To state a claim for conversion under D.C. law, a plaintiff must allege ” ‘(1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal property of another, (4) in denial or repudiation of that person‘s rights thereto.’ ” Johnson v. McCool, 808 F.Supp.2d 304, 308 (D.D.C.2011) (quoting Gov‘t of Rwanda v. Rwanda Working Grp., 227 F.Supp.2d 45, 62 (D.D.C.2002)); see also Baltimore v. District of Columbia, 10 A.3d 1141, 1155 (D.C.2011). “Generally speaking, conversion applies to chattel; however, ‘[m]oney can be the subject of a conversion claim if the plaintiff has the right to a specific identifiable fund of money.’ ” McNamara v. Picken, 950 F.Supp.2d 193, 194 (D.D.C.2013) (quoting Cannon v. Wells Fargo Bank, N.A., 926 F.Supp.2d 152, 176 (D.D.C.2013)); see also Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828, 833 n. 3 (2004) (“As a general rule, money, i.e., currency, is not subject to a claim of conversion unless the plaintiff seeks to recover specific segregated or identifiable funds.“). “A cause of action for conversion, however, may not be maintained to enforce a mere obligation to pay money.” Curaflex Health Servs., Inc. v. Bruni, 877 F.Supp. 30, 32 (D.D.C.1995).
The Court‘s inquiry as to whether Ms. Campbell has plausibly alleged a claim of conversion begins and ends with the question of whether Ms. Campbell has alleged facts showing that Defendants exercised control over a specific and identifiable fund of money that constitutes her personal property. In support of their position that Ms. Campbell has not so alleged, Defendants rely primarily on Cannon v. Wells Fargo Bank, N.A., which rejected a claim of conversion premised on allegations that the defendants had charged the plaintiff a premium payment to which they were not entitled because the plaintiff did not “articulate a right to any specific identifiable fund of money.” 926 F.Supp.2d 152, 176 (D.D.C.2013). Defendants also analogize Ms. Campbell‘s case to that of Ficken v. AMR Corp., 578 F.Supp.2d 134, 143 (D.D.C.2008), where this Court rejected a claim of conversion premised on the alleged taking of frequent flyer miles, reasoning that the miles “amounted to credit with the airline,” and as such, could not be the subject of a conversion claim. 578 F.Supp.2d 134, 143 (D.D.C.2008) (reasoning that because conversion extends “only to intangible rights identified by a tangible document that is converted ... a plaintiff may bring a suit for conversion of a promissory note ... but not for conversion of a debt” (internal quotation marks omitted)).
Ms. Campbell concedes that District of Columbia courts require a plaintiff alleging conversion of money to establish a “right to a specific identifiable fund of money,”22 but she notes that the phrase “remains undefined in the District of Columbia,” and that other courts accept allegations that converted sums were ‘identifiably the plaintiff‘s property or that the defendant was obligated to segregate such money for the plaintiff‘s benefit.‘” Pl.‘s Opp‘n at 34 (quoting Scholes Elec. & Commc‘ns, Inc. v. Fraser, No. 04-civ-3898, 2006 WL 1644920, at *5 (D.N.J. June 14, 2006) (unpublished)). Thus, she concludes that the money she paid for insurance was “specifically and identifiably her property,” as it was “deducted from her credit card on a monthly or yearly basis, without Plaintiff‘s consent and without the requisite regulato-
ry approval,” and that “[i]n such a situation, a conversion claim against the insurer should be permissible.” Pl.‘s Opp‘n at 34.
Ms. Campbell‘s brief offers no discussion or refutation of the authorities upon which Defendants rely. See id. at 33-34. She does not explain how her claim of unauthorized premium payments is distinguishable from the allegation found inadequate to support a claim of conversion in Cannon, nor does she offer any developed argument to undermine Defendants’ assertion that a credit card charge cannot serve as the basis for a conversion claim. In Scholes, the unpublished opinion on which Ms. Campbell‘s argument relies, the District Court of New Jersey held that where a plaintiff alleged that defendants wrongfully retained funds owed to him for work that he had performed, he failed to state a claim for conversion under New Jersey law because “the funds at issue were not sufficiently segregated or identifiable to be considered Plaintiff‘s property.” 2006 WL 1644920, at *6 (explaining that the relevant contracts did not require that funds owed to the plaintiff be segregated upon receipt). The case thus offers no support for Ms. Campbell‘s position that Defendants’ allegedly unauthorized charges to Ms. Campbell‘s credit card can support a claim for conversion.
In light of Ms. Campbell‘s failure to even attempt to distinguish her case from the precedents relied upon by Defendants, or to cite any authority indicating that an excessive credit card charge can provide a basis for a claim of conversion, the Court will dismiss Ms. Campbell‘s conversion claim pursuant to
Order of Police/Dep‘t of Corr. Labor Comm. v. Williams, 263 F.Supp.2d 45, 48 (D.D.C.2003) (dismissing claim where “Plaintiffs have failed to distinguish these precedents or to point to any basis for this Court to come to any different conclusion“); see also Stephenson v. Cox, 223 F.Supp.2d 119, 122 (D.D.C.2002) (“The court‘s role is not to act as an advocate for the plaintiff and construct legal arguments on his behalf in order to counter those in the motion to dismiss.“).
4. Money Had and Received (Count V)
Ms. Campbell‘s third and final equitable claim is for money had and received. Like her unjust enrichment and conversion claims, this claim is also predicated on the allegation that Defendants charged her unauthorized premium payments over and above her contractual obligation. See 1st Am. Compl. ¶¶ 229-33; Pl.‘s Opp‘n at 30. Defendants argue that the claim must be dismissed because it depends on an agreement not to increase her premium costs, and such an agreement has not been adequately alleged. Catamaran Mem. Supp. Mot. Dismiss at 23. They also argue that because Ms. Campbell could have told her credit card issuer not to make the allegedly unauthorized payments, she has not shown that she should recover the overpayments “in equity and good conscience.” Id. Alliant Services further asserts that Ms. Campbell‘s money had and received claim is “duplicative of her unjust enrichment claim, and must fail for the same reasons,” and that she cannot recover premium payments “in equity and good conscience” when she received the enforceable coverage she bargained for. Alliant Mem. Supp. Mot. Dismiss at 12-13.
In the District of Columbia, “[w]here one person receives money that in equity and good conscience belongs to another, an action will lie for money had and received.” Credit Lyonnais-N.Y. v. Wash. Strategic Consulting Grp., Inc., 886 F.Supp. 92, 93 (D.D.C.1995) (internal quotation marks omitted) (citing Hillyard v. Smither & Mayton, Inc., 76 A.2d 166, 167 (D.C.1950)). Like a claim for unjust enrichment, a claim for money had and received is a quasi-contract claim, and “is founded on the principle that no one ought unjustly to enrich himself at the expense of another.” Hillyard, 76 A.2d at 167; see also Credit Lyonnais-N.Y., 886 F.Supp. at 93 (explaining that “[t]he equitable doctrine of unjust enrichment is very similar”
Defendants’ first argument in favor of dismissal posits that because Ms. Campbell‘s claim is premised on an allegation that Defendants charged her premium payments in excess of her contractual obligation, and because she has not identified the material terms of the contract in question, she has failed to plead facts supporting an inference that the unauthorized payments should be returned to her “in equity and good conscience.” Catamaran Mem. Supp. Mot. Dismiss at 23. The Court disagrees. Defendants do not assert that Ms. Campbell‘s money had and received claim is subject to
though Defendants argue that Ms. Campbell could have told her credit card issuer not to allow the payments in question, it is unclear from the face of the complaint when Ms. Campbell knew or reasonably should have known of the excess charges, and in any case, it would be inappropriate for the Court to assess the equitable merit of Ms. Campbell‘s claim at this stage of the litigation; it is enough for the time being that she has alleged facts that, if true, state a plausible claim for relief.
The Court also rejects Alliant Services’ argument that because Ms. Campbell received an enforceable insurance policy, Defendants’ retention of the premium payments in question could not be unjust. As Ms. Campbell notes, the basis of her claim is that she was charged for premium payments that were not authorized by her or DISB. Pl.‘s Opp‘n at 30. Accordingly, the fact that Ms. Campbell received the benefit of her bargain as to those payments that were contractually authorized does not prevent her from seeking to recover contractually-unauthorized payments in equity. See In re APA Assessment Fee Litig., 766 F.3d 39, 46 (D.C.Cir.2014) (holding that existence of a contract did not bar plaintiff‘s unjust enrichment claim where contract did not permit the charge in question, which “was instead an extra-contractual payment falling outside the ‘scope’ of the governing contracts,” such that the contract “pose[d] no obstacle to an unjust enrichment claim seeking to recover ... fees paid“).
Alliant Services’ final argument—that Ms. Campbell‘s money had and received claim duplicates her unjust enrichment claim and thus should be dismissed for the same reasons—falls flat in light of the Court‘s denial of Defendants’ motion to
In the absence of any developed argument from Defendants, the Court will not dismiss the money had and received claim as duplicative at this time. See Parr v. Ebrahimian, 774 F.Supp.2d 234, 241 n. 1 (D.D.C.2011) (“Such duplicative claims need not be dismissed at this early stage in the litigation,” so long as they are “dismissed before the case is submitted to a jury” (internal quotation marks omitted)).
5. Breach of Contract and the Duty of Good Faith and Fair Dealing (Count II)
Ms. Campbell‘s next claim asserts a breach of contract and the implied duty of good faith and fair dealing, and it is pled in the alternative to her three equitable claims. The claim is comprised of two parts: (1) Defendants breached the terms 25 of their contract with Ms. Campbell by unilaterally charging her more than her contractual obligation, and (2) Defendants breached the duty of good faith and fair dealing because they knew that they were selling her a worthless and illegal “group” policy but failed to inform her of that fact. 1st Am. Compl. ¶¶ 185-94. As to the breach of contract claim, Defendants argue Ms. Campbell has failed to allege that any Defendant agreed to freeze her premium rates indefinitely, and she failed to identify the parties to or material terms of any such agreement. Catamaran Mem. Supp. Mot. Dismiss at 21-23. Alliant Services adds that Ms. Campbell “does not plausibly allege that she had any contract, void or otherwise, with Alliant Services.” Alliant Mem. Sup. Mot. Dismiss at 10. Ms. Campbell, in turn, protests that she has adequately alleged that each Defendant breached the terms of their contract. See 1st Am. Compl. ¶ 187 (“Defendants, individually and collectively, contracted with the Plaintiff ... to pay a premium for insurance coverage.“).
As the D.C. Court of Appeals recently explained, “to state a claim for breach of contract so as to survive a
Ms. Campbell asserts that these allegations are sufficient to state a plausible claim that she contracted with all Defendants, and that all Defendants violated their contracts with her by collecting higher-than-authorized premiums. id. ¶ 187; Pl.‘s Opp‘n at 27. The Court disagrees. As an initial matter, Ms. Campbell has alleged only that Catamaran and HealthExtras LLC collected her insurance payments, and she asserts that Catamaran alone determined how much she would be charged for her premiums. id. ¶ 130. Thus, to the extent that a contract term was breached by the charging and collecting of excessive premiums, Ms. Campbell has failed to allege facts plausibly suggesting that any Defendant other than Catamaran or perhaps HealthExtras LLC could have taken such an action.
Moreover, at no point in her complaint does Ms. Campbell describe the terms of her alleged contract, other than to say that she agreed to pay premiums.26 See 1st Am. ¶ 60, 187. If any term of her contract prohibited increases in premium rates, she has failed to identify or describe that term. Cf. Francis, 110 A.3d at 620-21 (holding
that at a minimum, a plaintiff must “describe the terms of the alleged contract and the nature of the defendant‘s breach“); Logan v. LaSalle Bank Nat. Ass‘n, 80 A.3d 1014, 1023-24 (D.C.2013) (holding that plaintiff‘s failure to identify “a governing contractual provision” made “dismissal under
Ms. Campbell also alleges that Defendants violated the implied duty of good faith by selling her worthless insurance that they knew was illegal under D.C. law. Defendants argue that the allegation that Defendants sold her insurance that they knew was illegal “sounds in fraud” and fails to satisfy
Under D.C. law, “all contracts contain an implied duty of good faith and fair dealing ... [which] means that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 321 (D.C.2008) (internal quotation marks and citation omitted). “A party breaches this covenant if it ‘evades the spirit of the contract, willfully renders imperfect performance, or interferes with performance by the other party to the contract.’ ” Brown v. Sessoms, 774 F.3d 1016, 1025 (D.C.Cir.2014) (quoting Paul v. Howard Univ., 754 A.2d 297, 310 (D.C.2000)). Significantly, a claim for “breach of the duty of good faith and fair dealing must necessarily arise out of the performance or enforcement of the contract, not out of the contract negotiations.” C & E Servs., Inc. v. Ashland Inc., 601 F.Supp.2d 262, 275 (D.D.C.2009) (citing Ellipso, Inc. v. Mann, 541 F.Supp.2d 365, 373-74 (D.D.C.2008)).
To the extent that Ms. Campbell‘s breach of the duty of good faith and fair dealing claim arises out of any misrepresentations, omissions, or illegality in Defendants’ statements or advertisements that led her to purchase the policy in question, the claim clearly fails. As Defendants correctly point out, such a claim can only arise out of the performance or enforcement of the parties’ contract. See C & E Servs., Inc. v. Ashland Inc., 601 F.Supp.2d at 275. Thus, the allegation that Defendants failed to tell Ms. Campbell that her policy was illegal before selling it to her does not support a claim for breach of the implied duty of good faith and fair dealing, which arises only after a contract has been formed. See Parr v. Ebrahimian, 774 F.Supp.2d 234, 244 (D.D.C.2011) (holding that where plaintiff alleged that defendants affirmatively misrepresented and withheld “the true nature” of the subject of a contract “prior to the formation of the sale contract,” plaintiff alleged “if anything, bad faith in negotiation, which is not a violation of the implied contractual duty of good faith and fair dealing“); Xereas v. Heiss, 933 F.Supp.2d 1, 9 (D.D.C.2013) (holding that plaintiff could not state a claim of breach of the implied duty of good faith based on allegation that defendants fraudulently induced him to enter into an agreement because an “allegation regarding ‘pre-contract negotiations’ cannot state an implied duty claim under D.C. Law“).
Ms. Campbell does also allege that post-contract actions are at issue, however, in that Defendants continued to collect premium payments for a policy that they knew was illegal and unenforceable. Pl.‘s Opp‘n at 28-30. These allegations, she argues, are sufficient to show that Defendants’ actions “had the effect of destroying or injuring the right of the plaintiff to receive the fruits of the contract.” Id. at 28 (quoting Hais v. Smith, 547 A.2d 986, 987 (D.C.1988)). She does not elaborate
As Defendants argue and as the Court has previously explained,
Taking Ms. Campbell‘s factual allegations as true, she contracted to receive a specified disability insurance policy with the expectation that the policy be valid and enforceable under D.C. law. She has produced neither allegations nor arguments indicating that Defendants’ failure to inform her of the policy‘s non-compliance with certain aspects of D.C. insurance laws and regulations in any way destroyed, injured, or otherwise interfered with right to receive the insurance that she purchased. Cf. Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1133 (D.C.2015) (holding that where defendants knew of but failed to disclose the existence of impending construction in the area, they did not violate the duty of good faith or deprive plaintiffs “of the fruits of the sales contract—namely, a residence whose value would not be diminished by impending construction ... because they received good title to the property at issue under the terms and conditions set forth in the contract“). The Court thus finds that Ms. Campbell has failed to state a claim for breach of the implied duty of good faith and fair dealing and will dismiss the claim pursuant to
6. CCPA claims (Count IV)
Ms. Campbell‘s final claim for relief alleges that Defendants violated twelve distinct provisions of the CPPA by misrepresenting facts about the HealthExtras program, concealing the terms of the Master Policy, obscuring the interrelationships between Defendants, implying that various Defendants were licensed insurance companies, advertising coverage Defendants never intended to provide, charging her premiums in excess of her contractual obligation for illusory insurance, misrepresenting the identity of the insurer and underwriter, and violating
Defendants argue first that Ms. Campbell‘s CPPA claim fails to comply with the particularized pleading requirement of
First, the Court is not persuaded that because Ms. Campbell‘s CPPA claim is premised in part on a series of alleged misrepresentations about the benefit program, it is subject to
particularity. Defendants’ argument to the contrary depends primarily on two prior opinions of this Court: Witherspoon v. Philip Morris, Inc., 964 F.Supp. 455, 464 (D.D.C.1997), and Jefferson v. Collins, 905 F.Supp.2d 269, 289 (D.D.C.2012). In Witherspoon, this Court observed that the plaintiff‘s CPPA claim was analogous to his fraud by nondisclosure claim, and the Court was persuaded that where a plaintiff alleges deceptive trade practices, “allegations supporting the claim must be pleaded with particularity because they are akin to allegations of fraud.” 964 F.Supp. at 464 (internal quotation marks and citation omitted). Subsequently, in Jefferson, this Court noted that it found ”Witherspoon‘s rational convincing, and given that the plaintiffs [did] not dispute
In this case, however, Ms. Campbell does not concede
Defendants argue that the lack of a statutory requirement to plead intent should not shield Ms. Campbell from having to plead her CPPA misrepresentation claims with particularity, and they urge the Court to look beyond the particular cause of action pled to see if the underlying factual allegations in the complaint include averments of fraud. See Catamaran Reply at 18-20 (citing Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007)). But in the context of a CPPA claim—a cause of action specifically created with the intent to relieve plaintiffs from the burden of pleading fraud—the Court finds that Fort Lincoln and Saucier counsel against holding plaintiffs to the particu-
larized pleading requirements applicable to claims of fraud. See Logan v. LaSalle Bank Nat. Ass‘n, 80 A.3d 1014, 1027 n. 13 (D.C.2013) (holding that damages need not “be pleaded with particularity under the CPPA,” and citing Saucier for the proposition that the “CPPA pleading standard [is] meant to reduce [the] burden of particularized pleading required for alleging misrepresentation in action for common law fraud“). The Court will therefore deny Defendants’ motion to dismiss Ms. Campbell‘s CPPA claim for failure to comply with
Defendants next argue that “even under Rule 8,” Ms. Campbell has failed to plausibly allege that Defendants’ had no intention to pay covered claims.28 See Catamaran Mem. Supp. Mot. Dismiss at 20. Ms. Campbell‘s complaint alleges that Defendants violated
Ms. Campbell‘s conclusory allegation that Defendants advertised insurance coverage without the intent to sell such insurance, is effectively a bare recitation of the elements of a
tised certain communication services for a certain cost while never intending to provide that advertised value of service so that defendants could pocket the difference in violation of D.C. law, because he “did not provide any facts that show the unlawful intent of appellees in selling the cards“).
The Court will deny, however, Defendants’ respective motions to dismiss the remainder of Ms. Campbell‘s CPPA claim. Although Defendants argue that Ms. Campbell‘s entire CPPA claim must fail because her policy was valid and enforceable under D.C. law, CPPA liability is not limited to misrepresentations or trade practices that would render a policy void or unenforceable. For example, Ms. Campbell alleges that Defendants violated
Similarly unpersuasive are Alliant Services and National Union‘s arguments that because they did not become involved in
Finally, the Court rejects Virginia Surety‘s argument that Ms. Campbell has failed to state a CPPA claim against it because she “does not attribute any specific false or misleading statements to Virginia Surety directly.” See Virginia Surety Mem. Supp. Mot. Dismiss at 9. As Ms. Campbell points out, her complaint alleged that Virginia Surety has been identified as the issuer and underwriter for her emergency medical benefit since she enrolled, that despite Virginia Surety‘s knowledge of the illegality of the HealthExtras insurance program, it joined the scheme and allowed Catamaran to use its name on materials to solicit consumers and to add a perception of legitimacy to the program, and that Virginia Surety received fees from premiums collected pursuant to the scheme. Pl.‘s Opp‘n at 49-50 (citing 1st Am. Compl. ¶¶ 156-61). To the extent that Virginia Surety may have intended to argue that CPPA liability is limited to the direct publisher of a misleading statement and does not reach one who facilitates or consents to the publication, it has provided neither argument nor authority to support such a proposition. In the absence of any such developed argument or authority, the Court must deny Virginia Surety‘s motion to dismiss the CPPA claim. See Intelsat USA Sales Corp. v. Juch-Tech, Inc., 24 F.Supp.3d 32, 48 n. 10 (D.D.C.2014) (“All federal courts are in agreement that the burden is on the moving party in a
V. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’ motions to dismiss. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
For the reasons stated in the Court‘s Memorandum Opinion separately and contemporaneously issued, Defendants’ motions to dismiss (ECF Nos. 35, 36, 37, 38) are GRANTED IN PART AND DENIED IN PART. It is hereby:
ORDERED that:
- All claims against Defendant Alliant Insurance Services Inc. are DISMISSED.
- Defendants’ motions to dismiss Plaintiff‘s unjust enrichment claim (Count I) are GRANTED IN PART AND DENIED IN PART.
- Plaintiff‘s conversion claim (Count III) is DISMISSED.
- Defendants’ motions to dismiss Plaintiff‘s money had and received claim (Count V) are DENIED.
- Plaintiff‘s breach of contract and the duty of good faith and fair dealing claim (Count II) is DISMISSED.
- Defendants’ motions to dismiss Plaintiff‘s D.C. Consumer Protection Procedures Act claim (Count IV) are GRANTED IN PART AND DENIED IN PART.
SO ORDERED.