United States District Court, S.D. Florida
RANDY ROSENBERG, D.C., P.A., a/a/o Danielle Russell, on behalf of itself and all others similarly situated, Plaintiff,
GEICO GENERAL INSURANCE COMPANY, Defendant.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant GEICO
General Insurance Company's (“Defendant”)
Motion to Dismiss, ECF No.  (“Motion”).
Plaintiff Randy Rosenberg, D.C., P.A.
(“Plaintiff”) filed its Response in Opposition,
ECF No.  (“Response”), to which Defendant
filed a Reply, ECF No.  (“Reply”). Further,
after conducting a Hearing on the Motion, Defendant filed two
Notices of Supplemental Authority, ECF Nos.  & ,
and Plaintiff likewise filed a Notice of Supplemental
Authority, ECF No. . The Court has considered the Motion,
all opposing and supporting submissions, the arguments
presented at the Hearing, the record in this case, and the
applicable law, and is otherwise fully advised. For the
reasons set forth below, Defendant's Motion is granted in
part and denied in part.
brings this class action for declaratory judgment (Count I)
and breach of contract (Count II) against Defendant, alleging
that Defendant has a wide-spread practice of improperly
paying personal injury protection (“PIP”) claims
at a reduced amount. See ECF No. 
(“Amended Complaint”). Plaintiff challenges
Defendant's interpretation of a specific endorsement to
one of its automobile policies, “FLPIP (01-13).”
Id. at 1-2. The endorsement includes the following
language: “A charge submitted by a provider, for an
amount less than the amount allowed above, shall be paid in
the amount of the charge submitted.” Id. at 6.
to the Amended Complaint, Danielle Russell
(“Russell”) was insured under an automobile
insurance policy with Defendant. Id. at 7. Russell
was involved in a motor vehicle accident while insured.
Id. at 6-7. Plaintiff is a healthcare provider that
provided medical care to Russell for the injuries she
sustained in the motor vehicle accident, in exchange for an
assignment of benefits. Id. at 7. The Amended
Complaint lists four charges for Russell's medical
services, for which Plaintiff submitted claims to Defendant.
Id. at 7-8.
four charges listed in the Amended Complaint were for amounts
less than the amount permitted by a permissive fee schedule
under Florida Statutes § 627.736 (“Florida PIP
Statute”). Id. For each charge that was below
the fee schedule amount, Defendant reimbursed Plaintiff for
80% of the billed amount and provided an Explanation of
Review (“EOR”) that contained the code
“BA.” Id. The BA code indicated that
Defendant reduced reimbursement of the charge to 80% of the
billed amount. Id. The Florida PIP Statute states
that “[t]he insurer may limit reimbursement to 80
percent” of certain schedules of maximum charges,
including “[f]or all other medical services supplies
and care” not listed in subsections (5)(a)1a-e,
“200 percent of the allowable amount under: (I) The
participating physicians fee schedule of Medicare Part
B.” Fla. Stat. § 627.736(5)(a)1f(I). Plaintiff
believes that the language in the endorsement required full
payment of bills for amounts that were less than the amounts
set forth in the fee schedule, rather than payment of 80% of
the billed amounts. Id. at 6. Defendant takes the
contrary position. Id.
action was originally filed in the Seventeenth Judicial
Circuit in and for Broward County, Florida, asserting a
single class declaratory judgment claim. Defendant filed a
Notice of Removal on June 6, 2019, ECF No. , relying on
the Class Action Fairness Act (“CAFA”), 28 U.S.C.
§ 1332, 28 U.S.C. § 1441(a) and (b), and 28 U.S.C.
§ 1453. Plaintiff filed a Motion for Remand “in an
abundance of caution” for the Court to consider whether
remand was appropriate for lack of Article III standing. ECF
No. . In response, Defendant argued that dismissal, rather
the remand, was necessary for a lack of standing. ECF No.
. The Court denied the Motion for Remand, holding that
Plaintiff had Article III standing because the declaratory
judgment claim in the original Complaint sought individual,
supplemental monetary damages resulting from Defendant
allegedly paying less on certain insurance claims than owed
to Plaintiff. ECF No. . On September 11, 2019, Plaintiff
filed its Amended Complaint, adding an additional claim for
breach of contract on a class-wide basis. See ECF
instant Motion, Defendant moves for dismissal pursuant to
Rule 12(b)(1) and 12(b)(6), arguing that Plaintiff lacks
standing under Article III and that the Amended Complaint
fails to state a breach of contract claim that could be
certified on a class-wide basis. ECF No. . Plaintiff
contends that it has sufficiently established Article III
standing and that a determination on class certification
issues is inappropriate at the motion-to-dismiss stage, where
the parties have not had the opportunity to engage in
discovery in order to sufficiently establish all of the
elements required for class certification. ECF No. .
November 26, 2019, this Court held a Hearing on
Defendant's Motion to Dismiss, which was attended by
Plaintiff's counsel and Defendant's counsel. During
the Hearing, Defendant argued primarily that the individual
issues regarding the calculation of damages for each class
member indicate, on the face of the Amended Complaint, that
Plaintiff cannot establish the typicality and predominance
elements required for class certification. Plaintiff, on the
other hand, first advised the Court that it was withdrawing
Count I of its Amended Complaint and would only be proceeding
on the breach of contract claims asserted under Count II.
Additionally, Plaintiff argued that the issue of class
certification is premature at the motion-to-dismiss stage of
the litigation and that individualized issues on damages
nonetheless do not preclude class certification.
element of the case-or-controversy requirement under Article
III of the United States Constitution is that plaintiffs
“must establish that they have standing to sue.”
Raines v. Byrd, 521 U.S. 811, 818 (1997).
“‘The law of Article III standing . . . serves to
prevent the judicial process from being used to usurp the
powers of the political branches,' and confines the
federal courts to a properly judicial role.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(citations omitted) (citing Clapper v. Amnesty Int'l
USA, 568 U.S. 398, 408 (2013); Warth v. Seldin,
422 U.S. 490, 498 (1975)). “Standing for Article III
purposes requires a plaintiff to provide evidence of an
injury in fact, causation and redressibility [sic].”
Dermer v. Miami-Dade Cty., 599 F.3d 1217, 1220 (11th
Cir. 2010) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). Specifically, “[t]o have
standing, a plaintiff must show (1) he has suffered an injury
in fact that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to conduct of the defendant; and
(3) it is likely, not just merely speculative, that the
injury will be redressed by a favorable decision.”
Kelly v. Harris, 331 F.3d 817, 819-20 (11th Cir.
2003); see also Bochese v. Town of Ponce Inlet, 405
F.3d 964, 980 (11th Cir. 2005).
party invoking federal jurisdiction bears the burden of
proving standing.” Fla. Pub. Interest Research Grp.
Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1083 (11th
Cir. 2004) (quoting Bischoff v. Osceola Cty., 222
F.3d 874, 878 (11th Cir. 2000)). A Rule 12(b)(1) motion
challenges the district court's subject matter
jurisdiction and takes one of two forms: a “facial
attack” or a “factual attack.” “A
‘facial attack' on the complaint ‘require[s]
the court merely to look and see if [the] plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for
the purposes of the motion.'” McElmurray v.
Consol. Gov't of Augusta-Richmond Cty., 501 F.3d
1244, 1251 (11th Cir. 2007) (quoting Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “A
‘factual attack,' on the other hand, challenges the
existence of subject matter jurisdiction based on matters
outside the pleadings.” Kuhlman v. United
States, 822 F.Supp.2d 1255, 1256-57 (M.D. Fla. 2011)
(citing Lawrence, 919 F.2d at 1529); see also
Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys.,
Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By
contrast, a factual attack on a complaint challenges the
existence of subject matter jurisdiction using material
extrinsic from the pleadings, such as affidavits or
assessing the propriety of a motion for dismissal under
Fed.R.Civ.P. 12(b)(1), a district court is not limited to an
inquiry into undisputed facts; it may hear conflicting
evidence and decide for itself the factual issues that
determine jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). As such,
“[w]hen a defendant properly challenges subject matter
jurisdiction under Rule 12(b)(1), the district court is free
to independently weigh facts, and ‘may proceed as it
never could under Rule 12(b)(6) or Fed.R.Civ.P.
56.'” Turcios v. Delicias Hispanas Corp.,
275 Fed.Appx. 879, 880 (11th Cir. 2008) (quoting Morrison
v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).
Rule of Civil Procedure 8 requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)'s pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 557). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) that requests dismissal for failure to
state a claim upon which relief can be granted.
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. Miccosukee Tribe of Indians of
Fla. v. S. Everglades Restoration All., 304 F.3d 1076,
1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v.
Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D.
Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations,' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th
Cir. 2009); see also Maxcess, Inc. v. Lucent Techs.,
Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005)
(“[A] document outside the four corners of the
complaint may still be considered if it is central to the
plaintiff's claims and is undisputed in terms of
authenticity.” (citing Horsley v. Feldt, 304
F.3d 1125, 1135 (11th Cir. 2002))).