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Publix Super Markets, Inc. v. Figareau

United States District Court, M.D. Florida, Tampa Division

June 27, 2019

PUBLIX SUPER MARKET, INC., In its Capacity as Plan Sponsor and Plan Administrator of the Publix Super Markets, Inc., Group Health Plan Benefit, Plaintiff,
v.
PATRICIA FIGAREAU, and FRANTZ PAUL, Individually and on behalf of L.P., a minor, MARIA D. TEJEDOR, Esquire, and DIEZ-ARGUELLES & TEJEDOR, P.A., Defendants.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge recommending that Plaintiff's Motion for Preliminary Injunction (Dkt. 13) be granted (Dkt. 48). Defendants have objected (Dkt. 48), to which Plaintiff has responded (Dkt. 51). Upon consideration, Defendants' objections are overruled. The Report and Recommendation (Dkt. 48) is accepted and adopted. Plaintiff's Motion for Preliminary Injunction (Dkt. 13) is GRANTED.

         Standard of Review

         A report and recommendation may be accepted, rejected, or modified. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009). And the report and recommendation is reviewed for “clear error” even in the absence of objections. See Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006).

         Defendants' Objections

         Defendants make five objections: (1) there is insufficient evidence that Plaintiff's health plan is subject to ERISA, (2) documents other than the Plan do not create the right to a lien, (3) Plaintiff cannot establish that it is entitled to a temporary injunction, (4) Plaintiff cannot maintain a cause of action against Defendants Tejedor or Diez-Arguelles & Tejedor, P.A., and therefore, an injunction should not issue against them, and (5) the underlying settlement involves claims brought by a minor and must be supervised by a Florida court.[1]

         A. There is insufficient evidence that the Plaintiff's Plan is subject to ERISA

         Defendants contend that the magistrate judge incorrectly concluded that Plaintiff's health plan is governed by ERISA, which preempts any state laws that may relate to the plan. (Dkt. 49 at pp. 2-3). To support this contention, Defendants proffer “Form 5500” to infer that Plaintiff has failed to prove that its plan is governed by ERISA. However, neither this argument nor Form 5500 were presented to the magistrate judge for consideration. And in this Circuit, arguments raised for the first time in objections to a report and recommendation need not be considered. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (“a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.”). I decline to consider evidence not presented to the magistrate judge.

         Defendants further contend that Plaintiff never provided them with “an actual copy of the plan itself” and therefore “[i]t cannot establish what its rights are without providing the documents that specifies those rights.” (Dkt. 49 at pp. 3-6). But this contention fails to identify error on the part of the magistrate judge. Notwithstanding, this argument is not well-taken.

         Contrary to Defendants' argument, the magistrate judge correctly determined, based on the evidence presented to him, that Plaintiff's plan is self-funded. Specifically, the magistrate judge considered the Complaint and Affidavit of Plaintiff's Vice President of Benefits Administration (Dkt. 14-1), which supports his finding. And the magistrate judge's conclusion that the Summary Plan Description constitutes the ERISA instrument that governs the benefits available under the Plan is likewise correct. The Summary Plan Description sets out the terms that govern the benefits available under the Plan and control the rights and obligations of the parties. See e.g., Bd. of Trs. of Nat'l Elevator Indus. Health Benefit Plan v. Montanile, 593 Fed.Appx. 903, 911 (11th Cir. 2014) (“We hold that the NEI Summary Plan Description constitutes a written instrument that sets out enforceable ‘terms of the plan.' ”), rev'd on other grounds sub nom., Montanile v. Bd. of Trs. of Nat'l Elevator Indus. Health Benefit Plan, __ U.S. __, 136 S.Ct. 651, 658 (2016).[2]

         B. The documents other than the Plan that Plaintiff relies on do not create the right to a lien

          Defendants contend that the magistrate judge erred in concluding that Plaintiff's plan documents sufficiently identify the particular fund from which reimbursement must be made. (Dkt. 49 at pp. 7-8). Specifically, Defendants contend that the language from Plaintiff's Plan Summary and Employee Handbook are contradictory, which “invalidates the application of ERISA.” (Id. at p. 7). Defendants contentions are without merit.

         The magistrate judge correctly concluded, based on a review of both the Member Handbook and the Summary Plan Description, that the specific fund, as well as the reimbursement amount, were sufficiently identified. (Id.). Indeed, Defendants's contentions are belied by the Member Handbook. According to the Handbook, “[a] a condition of receiving benefits, the member must . . . [i]mmediately reimburse the Plan, out of any recovery made from another party, the amount of medical, prescription or other health care benefits paid for the injury or illness by the Plan up to the amount of the recovery . . ..” And when a member retains an attorney, the recovery shall be held in a constructive trust. (Dkt. 1-3 at pp. 44-45). Read together, this language satisfies the creation of a “lien by agreement.” See Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 366 (2006); Popowski v. Parrot, 461 F.3d 1367, 1373 (11th Cir. 2006).

         Moreover, the magistrate judge was correct in concluding that by virtue of Plaintiff's plan documents and description, its ERISA equitable lien attached as soon as a settlement was reached. See (Dkt. 1-3 at pp. 44-45); Sereboff, 547 U.S. at 366 (“the fund over which a lien is asserted need not be in existence when the contract ...


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