United States District Court, M.D. Florida, Tampa Division
PUBLIX SUPER MARKET, INC., In its Capacity as Plan Sponsor and Plan Administrator of the Publix Super Markets, Inc., Group Health Plan Benefit, Plaintiff,
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.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
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.
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).
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
There is insufficient evidence that the Plaintiff's Plan
is subject to ERISA
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.
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.
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).
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.
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).
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 ...