Fortitude Surgery Center LLC v. Aetna Health Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Fortitude Surgery Center LLC,
Plaintiff,
v.
Aetna Health Incorporated, et al.,
Defendants.
No. CV-24-02650-PHX-KML
ORDER
Plaintiff Fortitude Surgery Center LLC (“Fortitude”) provided medical services to
patients and now seeks to recover payment for those services from defendants Aetna
Health, Inc. and Aetna Life Insurance Company (collectively, “Aetna”). Fortitude initially
filed a complaint asserting Employee Retirement Income Security Act (“ERISA”) and
state-law claims, but the court dismissed those claims in May 2025. Fortitude filed an
amended complaint and the court again dismissed all claims in September 2025, granting
leave to amend one final time. (Doc. 45.) Fortitude has now filed a Second Amended
Complaint (“SAC”) (Doc. 52), and Aetna has moved to dismiss some of the state-law
claims (Doc. 57).1 Its motion is granted.
I. Factual Background
Aetna is a health benefits insurer and insurance plan administrator that provided
and/or administered insurance plans for individuals who received services from Fortitude,
1 Aetna also requested the court dismiss a claim alleged under the Federal Employees
Health Benefits Act (“FEHBA”) (Doc. 57 at 1), but Fortitude voluntarily dismissed that
claim (Doc. 60 at 1).
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a surgical center. (Doc. 52 at 2-3.) Fortitude is out-of-network with Aetna, which in
practice means Fortitude “submit[s] claims to Aetna at [its] billed charges” rather than
using previously-negotiated rates for reimbursement. (Doc. 52 at 4.) Before providing
treatment, Fortitude contacted Aetna to verify the individual was covered by an Aetna-
insured or Aetna-administered plan and their coverage included out-of-network benefits
for the relevant treatment. (Doc. 52 at 6.) Fortitude also verified coverage for the specific
treatment via Aetna’s website, “personal communication between Fortitude and Aetna,”
and/or Aetna’s Clinical Policy Bulletins. (Doc. 52 at 6.) When Fortitude directly “sought
authorization from Aetna to provide [a specific] treatment,” Aetna either authorized the
treatment or, “more often, informed Fortitude that no preauthorization was necessary.”
(Doc. 52 at 7.) Fortitude also alleges it “verified Aetna’s position that the procedure was
considered reasonable and necessary.” (Doc. 52 at 6-7.) Fortitude would not have provided
the relevant services without Aetna’s authorization. (Doc. 52 at 8.)
Despite representing that coverage would apply to the services Fortitude planned to
provide, “Aetna began serially denying payment on the Fortitude bills” without warning
(Doc. 52 at 11) and without explanations sufficiently detailed for Fortitude to glean the
basis for the refusals or for the failed appeals Fortitude typically filed after a refusal (Doc.
52 at 56-57). Fortitude did, however, receive a letter sent on May 1, 2020 from an Aetna
claim investigator which requested information from Fortitude including medical records
of relevant patients and their treatment. (Doc. 52 at 11-12.) But Fortitude alleges it
responded in full and Aetna ultimately denied its claims “because Fortitude has common
ownership with certain other pain management providers in the Phoenix area which []
previously had disputed unpaid claims with Aetna.” (Doc. 52 at 12.)
As a condition of receiving care at Fortitude, each patient assigned benefits and
rights to Fortitude, including the rights to obtain information regarding coverage and to
collect payments Aetna owed the member. (Doc. 52 at 8-9.) The validity of these
assignments is uncontested. (Doc. 52 at 9.) Based on those assignments, Fortitude filed this
suit asserting an ERISA claim on behalf of Aetna members on ERISA plans and state-law
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claims on behalf of Aetna members on non-ERISA plans. The court dismissed the ERISA
claim in May 2025 (Doc. 30) and again in September 2025 (Doc. 45) because Fortitude
had not provided sufficient information specific to the plans at issue to support its claims.
The September order also dismissed the remaining state-law claims on jurisdictional
grounds, but pointed out some had fundamental flaws. (Doc. 45 at 8.) It granted leave to
amend one final time (Doc. 45 at 7) and Fortitude filed its SAC in November 2025 (Doc.
52). Aetna now moves to dismiss most of the state-law claims. (Doc. 57.)
II. Legal Standard
“To 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) (simplified). This is not a “probability requirement,” but a
requirement that the factual allegations show “more than a sheer possibility that a defendant
has acted unlawfully.” Id. A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim
for relief . . . [is] a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
III. Analysis
Aetna moves to dismiss claims four through seven (Doc. 57 at 6), which allege
unjust enrichment, promissory estoppel, negligent misrepresentation, and breach of
implied contract (Doc. 52 at 62-70). Although portions of the complaint are unredacted
solely in the version filed under seal, this order discusses only public portions. Fortitude
apparently decided not to amend its state-law claims at all, despite the court’s warning
many were “obviously flawed.” (Doc. 45 at 8.)
A. Unjust Enrichment
Fortitude alleges Aetna’s withholding of payment for Fortitude’s services to Aetna
patients constituted unjust enrichment. (Doc. 52 at 62.) Unjust enrichment requires a
plaintiff show (1) an enrichment, (2) an impoverishment, (3) a connection between the
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enrichment and impoverishment, (4) a lack of justification for the enrichment and
impoverishment, and (5) the absence of a remedy provided by law. Ideasolv LLC v. Geante
Rouge SARL, No. CV-21-01905-PHX-MTL, 2022 WL 3042858, at *4 (D. Ariz. Aug. 2,
2022).
A party asserting a breach-of-contract claim may receive a remedy at law. Thus,
given the final element, when a party asserts both unjust enrichment and breach of contract,
the existence of a possible contractual remedy may foreclose their unjust enrichment claim.
Brooks v. Valley Nat. Bank, 548 P.2d 1166, 1171 (Ariz. 1976); see also Physicians Surgery
Ctr., 609 F. Supp. 3d 903, 939 (D. Ariz. 2022); Sutter Home Winery, Inc. v. Vintage
Selections, Ltd., 971 F.2d 401, 408 (9th Cir. 1992). But a party may bring an unjust
enrichment claim in the alternative “where her inability to enforce the contract leaves her
without an adequate remedy at law,” Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 833
(D. Ariz. 2016), and where the party has not received the benefit of the contractual bargain,
Adelman v. Christy, 90 F. Supp. 2d 1034, 1045 (D. Ariz. 2000). See also Lopez v. Musinorte
Ent. Corp., 434 F. App’x 696, 699 (9th Cir. 2011) (“a plaintiff can pursue an unjust
enrichment claim as an alternative theory of recovery in conjunction with a breach of
contract claim, subject, however, to only one recovery”). Because Fortitude pleads unjust
enrichment in the alternative (Doc. 52 at 62) and it remains possible a jury could find no
valid contract exists or Fortitude did not receive the benefit of its bargain, the claim is not
doomed by Fortitude also alleging a contractual remedy. See Victory Ins. & Fin. Servs.
LLC v. Ben Oberg Enters. LLC, No. CV-23-08015-PCT-DJH, 2025 WL 661879, at *4 (D.
Ariz. Feb. 28, 2025); Adelman, 90 F. Supp. 2d at 1045.
However, Aetna also argues Fortitude did not experience an impoverishment from
the unpaid services because it can recover payment for those services from its patients.
Dependable Nurses of Phoenix LLC v. Cigna Healthcare Inc., No. CV-20-01877-PHX-
SPL, 2021 WL 9597915, at *6 (D. Ariz. Feb. 2, 2021) (“When there is an opportunity to
recover from a third party, in this case the patients themselves, there is no
[impoverishment] to the plaintiff provider, a crucial element of unjust enrichment”). The
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court noted this flaw in its prior order but Fortitude elected not to change the allegations in
the SAC. (Doc. 45 at 8.) Instead, Fortitude argues it is making this claim as the patients’
assignee, “standing in the shoes of the patients.” (Doc. 58 at 5.)
Fortitude knew how to allege a claim based on its status as an assignee. The breach-
of-contract claim includes specific allegations showing Fortitude is asserting that claim in
that status. (Doc. 52 at 59.) But for unjust enrichment, the SAC alleges “Fortitude has been
significantly damaged,” “Fortitude incurred costs,” and “Fortitude will not have been
afforded an adequate remedy under law.” (Doc. 52 at 62-63.) Nowhere in the SAC does
Fortitude allege it is pursuing its unjust enrichment claim by standing in the shoes of its
patients; it does not allege the patients were impoverished or the patients have an absence
of a remedy at law. Accordingly, Fortitude could recover from its patients and has not
plausibly pleaded it suffered an impoverishment. See id. Its claim is dismissed.
B. Promissory Estoppel
Fortitude alleges Aetna promised to reimburse Fortitude for particular services “in
accordance with the terms of the Plan at issue” during pre-authorization conversations and
Fortitude relied on those promises to its detriment. (Doc. 52 at 64-65, 69.) It appears to
make this claim on its own behalf, not as an assignee, and does not explicitly plead the
claim in the alternative. (See Doc. 52 at 64-65 (alleging Aetna knew “Fortitude would rely
upon Aetna’s representations” and should be estopped from denying “its promise to
Fortitude”)).
A plaintiff can recover under the theory of promissory estoppel if he shows a
defendant made a promise, should have reasonably foreseen the plaintiff would rely on that
promise, and the plaintiff “actually relied on the promise to his detriment.” Higginbottom
v. State, 51 P.3d 972, 977 (Ariz. Ct. App. 2002); see Contempo Constr. Co. v. Mountain
States Tel. & Tel. Co., 736 P.2d 13, 16 (Ariz. Ct. App. 1987). “Arizona law prohibits an
action based on the promissory estoppel theory of liability if there is an express, written
contract on the same subject matter.” Bowman v. Honeywell Int’l, Inc., 438 F. App’x 613,
615 (9th Cir. 2011). But plaintiffs may allege inconsistent theories of recovery, Anderson
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v. Edward D. Jones & Co., L.P., 990 F.3d 692, 701 (9th Cir. 2021), and “proceed
simultaneously with claims for promissory estoppel and breach of contract at the pleading
stage” in case it later becomes clear the contract is not applicable. Alpha GRP, Inc. v.
Subaru of Am., Inc., No. CV182133MWFMRWX, 2018 WL 5986989, at *12 (C.D. Cal.
June 8, 2018) (promissory estoppel claim could proceed despite contract because there
were “disputes as to whether a valid contract has been formed”); TM Techs. Inc. v. Hand
Techs. Inc., No. CV-18-00286-TUC-DCB, 2019 WL 4643798, at *5 (D. Ariz. Sept. 24,
2019) (promissory estoppel claim could proceed despite contract because promises at issue
may have been outside contract’s scope).
Although a promissory estoppel claim can be pleaded simultaneously with a breach-
of-contract claim, it cannot be premised on the same allegations giving rise to the contract
claim because then promissory estoppel would rely on the contract’s validity and
applicability. Mobile Tech, Inc. v. Hitachi Sols. Am., Ltd., No. SACV2100461CJCADSX,
2021 WL 9747619, at *4 (C.D. Cal. Dec. 28, 2021). The SAC makes exactly that forbidden
move in explicitly alleging Aetna promised to pay for services “in accordance with its
obligations under the [plans].” (Doc. 52 at 64; see also id. (“Aetna confirmed to Fortitude
that the [beneficiary] was covered by a plan . . . with out-of-network benefits for the
services”).) In other words, Fortitude’s promissory estoppel claim relies on Aetna’s
promise to abide by the terms of the insurance contracts. Although Fortitude now argues
Aetna’s promise to pay according to its plan obligations is “consistent with and
independent of” those plans (Doc. 58 at 9), it does not explain how.
Fortitude’s promissory estoppel claim fails for an additional, independent reason.
Though Fortitude has now properly pleaded which services Aetna agreed to cover, the
promise to cover those services according to plan obligations appears to be an
insufficiently-definite conditional statement because Fortitude admittedly did not specify
the relevant rates, conditions, or timeframe for the payment (see Doc. 52 at 7). R&R
Surgical Inst. v. Health Care Serv. Corp., No. CV232120DSFGJSX, 2023 WL 8008979,
at *3 (C.D. Cal. July 27, 2023) (dismissing claim because plaintiff did not allege a clear
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promise to pay any specific rate); Dependable Nurses of Phoenix LLC, 2021 WL 9597915,
at *6 (plaintiff did not plead its reliance was reasonable where “it does not appear [the
insurer] ever promised a set rate”).
For both reasons, the motion to dismiss this claim is granted.
C. Negligent Misrepresentation
Fortitude asserts a negligent misrepresentation claim, alleging Aetna during pre-
authorization conversations knowingly “provided Fortitude with false or incorrect
information or omitted or failed to disclose material information to Fortitude relating to
Aetna’s intention to pay for the services Fortitude provided.” (Doc. 52 at 66-68.)
“Arizona recognizes a cause of action for negligent misrepresentation.” McAlister
v. Citibank (Arizona), a Subsidiary of Citicorp, 829 P.2d 1253, 1261 (Ariz. Ct. App. 1992)
(simplified). To plead this claim, the plaintiff must show: “(1) the defendant provided false
information in a business transaction; (2) the defendant intended for the plaintiff to rely on
the incorrect information or knew that it reasonably would rely; (3) the defendant failed to
exercise reasonable care in obtaining or communicating the information; (4) the plaintiff
justifiably relied on the incorrect information; and (5) resulting damage.” KB Home
Tucson, Inc. v. Charter Oak Fire Ins. Co., 340 O.3d 405, 412 n.7 (Ariz. Ct. App. 2014).
“A negligent misrepresentation claim cannot be based upon a promise of future
conduct”; instead, the plaintiff must prove misrepresentation of presently-existing facts.
Bowman, 438 F. App’x at 615. Fortitude characterizes certain misrepresentations as present
facts, for instance Aetna’s statements that each non-ERISA beneficiary was covered by
out-of-network benefits and that Fortitude was authorized to provide treatment. (Doc. 52
at 10.) But courts have found similar allegations center on an intention to pay rather than
present facts. For example, in McAlister v. CitiBank, the plaintiff alleged his bank made
misrepresentations in describing its policy, confirming the plaintiff would be allowed to
draw money up to his credit limit, and confirming deposits would be credited to his
account. 829 P.2d at 1261. The Arizona Court of Appeals held these statements “all
relate[d] to future events” and were not actionable misrepresentations. Id.; see also
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Bowman, 438 F. App’x at 615 (affirming dismissal of negligent misrepresentation claim
where defendant stated plaintiff would begin work once she passed a background check
because that statement described a future action). Those statements, like Fortitude’s, can
be characterized as “statements of fact” but in substance relate to future events and
promises of payment.
Fortitude also implies fraud by alleging Aetna misrepresented statements knowingly
and with the intent to induce Fortitude’s actions. (Doc. 52 at 66-68.) Even without those
specific allegations, negligent misrepresentation claims are typically pleaded under Rule
9(b)’s fraud standard. Sweeney v. Darricarrere, No. 2:09-CV-00266-JWS, 2009 WL
2132696, at *12 n.109 (D. Ariz. July 14, 2009) (collecting cases); see also In re Arizona
Theranos, Inc., Litig., 256 F. Supp. 3d 1009, 1032 (D. Ariz. 2017). This heightened
pleading standard requires plaintiffs to “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Under that standard, plaintiffs must
identify “‘the who, what, when, where, and how of the misconduct charged,’ as well as
‘what is false or misleading about the purportedly fraudulent statement, and why it is
false.’” United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054-
55 (9th Cir. 2011) (simplified); see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806
F.2d 1393, 1401 (9th Cir. 1986). “[T]he absence of specification of any times, dates, places
or other details of that alleged fraudulent involvement is contrary to the fundamental
purposes of Rule 9(b).” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).
Fortitude has not alleged the circumstances of the alleged misrepresentations with
sufficient particularity. It has only generally identified the individuals who made the
statements (Aetna representatives), the time period (“prior to providing medical
treatment”), and the content (confirming certain individuals were insured by Aetna for
authorized services). (Doc. 52 at 6-7.) Even if those allegations describe the content of
those conversations particularly enough, it is not clear from the SAC where they took place,
which Aetna representatives participated, or when they occurred. Fortitude now alludes to
specific emails and phone calls (Doc. 58 at 12), but does not provide the relevant details in
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the SAC or its briefing. Semegen, 780 F.2d at 731; see also Lui Ciro, Inc. v. Ciro, Inc., 895
F. Supp. 1365, 1375 (D. Haw. 1995) (general allegations that party made representations
over the course of two months via telephone and during meetings were not sufficiently
particular). Fortitude does not meet the 9(b) standard.2
Because Fortitude did not meet the Rule 9(b) pleading standard and did not
sufficiently plead misrepresentation of present facts, Aetna’s motion to dismiss this claim
is granted.
D. Breach of Implied Contract
Fortitude alleges the pre-treatment conversations in which Aetna authorized the
relevant treatments and the parties’ later conduct gave rise to implied contracts dictating
Aetna would reimburse Fortitude for the treatment it provided to Aetna patients. (Doc. 52
at 69.) Because Aetna failed to perform its reimbursement obligations, Fortitude alleges
the implied contract was breached. (Doc. 52 at 70.)
Valid contracts require an offer, acceptance, consideration, and intent by the parties
to be bound. Day v. LSI Corp., 174 F. Supp. 3d 1130, 1153 (D. Ariz. 2016), aff’d, 705 F.
App’x 539 (9th Cir. 2017). Contracts may be “implied,” i.e., “proved by circumstantial
evidence rather than by express written or oral terms,” but parties attempting to recover on
that theory must still show all elements of the contract existed. Pyeatte v. Pyeatte, 661 P.2d
196, 203 (Ariz. Ct. App. 1982); see Dependable Nurses of Phoenix LLC, 2021 WL
2 Additionally, though the parties do not address it, this claim appears barred by the
economic loss doctrine, which precludes tort recovery and “limit[s] a contracting party to
contractual remedies” where the party only alleges economic damages. Miidas
Greenhouses, LLC v. Glob. Horticultural, Inc., 244 P.3d 579, 581-82 (Ariz. Ct. App. 2010)
(simplified); see also Ares Funding, L.L.C. v. MA Maricopa, L.L.C., 602 F. Supp. 2d 1144,
1150 (D. Ariz. 2009) (economic loss doctrine bars recovery “when the claim alleges only
economic damages resulting from an alleged breach of contract”) (simplified). Fortitude’s
negligent misrepresentation claims allege only economic damage and are explicitly
premised on Aetna’s alleged breach of contract. (See Doc. 52 at 66-67.) Because the
doctrine bars negligent misrepresentation claims unless they “grow out of circumstances
independent of [the parties’] contractual relationship,” Finepoint Innovations, Inc., No. CV
04–1318–PHX–SMM, 2006 WL 3313688, at *3 (D. Ariz. Nov. 13, 2006), Fortitude has
not pleaded facts that would allow this claim to survive.
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9597915, at *5 (“The terms of the implied-in-fact contract must be as ascertainable as those
in a written or oral contract.”). Courts have dismissed claims alleging breaches of implied
contracts where certain key terms, like rates of reimbursement, remain unclear. See, e.g.,
Dependable Nurses of Phoenix LLC, 2021 WL 9597915, at *5.
Fortitude describes the terms of the implied contract too vaguely to properly allege
an implied contract claim. It alleges the parties impliedly contracted to follow the insurance
plans under which Fortitude is owed compensation. (Doc. 52 at 66; see Doc. 54-1.) But it
admits it did not know the terms of the implied contract when it provided treatment, and
even now apparently does not know the agreed-upon reimbursement rate. (Doc. 52 at 6;
see also Doc. 52 at 69-70 (alleging the rates were, “at a minimum, equivalent to the usual
and customary rate,” “alternatively” the reasonable value of the professional services
provided by Fortitude, the “usual and customary fees in that locality,” and “in accordance
with rates Aetna pays for other substantially identical claims submitted by other providers
as governed by the terms of the applicable Policy”).) Fortitude also fails to allege additional
key details, including whether the parties agreed on a timeframe for the reimbursements,
remedies, termination rights, or duration. The implied contract is therefore not properly
pleaded. See id. (no implied contract where court could not infer its terms, including the
rate of reimbursement); Pyeatte, 661 P.2d at 200-01 (no contract where parties did not
agree on timeframe, location, or cost).
Accordingly, Aetna’s motion to dismiss this claim is granted.
IV. Conclusion
Fortitude made no meaningful changes to its state-law claims in the SAC. Aetna’s
motion to dismiss is granted without leave to amend a third time. Ascon Props., Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (noting a “district court’s discretion to
deny leave to amend is particularly broad where plaintiff has previously amended the
complaint”).
Accordingly,
IT IS ORDERED Aetna’s partial Motion to Dismiss (Doc. 57) is GRANTED.
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IT IS FURTHER ORDERED as follows:
The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case
Management Report, which must be filed within 2 weeks of the date of this order. It is
the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint Case
Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule
26(f) meeting and assist in preparation of the Joint Case Management Report.
This case was filed on October 1, 2024, but has not yet progressed beyond the
pleading stage. The court’s general practice is to require the filing of dispositive motions
no later than two years after a case begins. Here, the presumptive deadline is sua sponte
extended such that dispositive motions are due December 1, 2026, but the parties are
warned that deadline will not be extended absent extraordinary circumstances. The parties
must propose case management deadlines that allow for the completion of all discovery
prior to that date.
The Joint Case Management Report shall contain the following information in
separately-numbered paragraphs.
1. The parties who attended the Rule 26(f) meeting and assisted in developing
the Joint Case Management Report;
2. A list of all parties in the case, including any parent corporations or entities
(for recusal purposes);
3. Any parties that have not been served and an explanation of why they have
not been served, and any parties that have been served but have not answered
or otherwise appeared;
4. A statement of whether any party expects to add additional parties to the case
or otherwise amend pleadings;
5. The names of any parties not subject to the court’s personal (or in rem)
jurisdiction;
6. A statement indicating whether the parties would prefer that the court hold a
case management conference before issuing a scheduling order—and, if so,
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an explanation of why this would be helpful.
7. A short statement of the nature of the case (no more than three pages),
including a description of each claim, defense, and affirmative defense;
8. A discussion of whether plaintiff(s) is entitled to conduct discovery on the
ERISA claims (including conflict-of-interest discovery) and, if so, the
appropriate scope of discovery for ERISA claims, as well as the appropriate
scope of discovery for Counts 2-4, the state-law claims for which plaintiff(s)
is entitled to conduct discovery;
9. Proposed page limits for dispositive motions, responses, and replies. The
court anticipates briefing ERISA claims and state-law claims together, and
the parties should note the court does not permit the filing of a separate
statement of facts;
10. Whether the case is suitable for reassignment to a United States Magistrate
Judge for all purposes or suitable for referral to a United States Magistrate
Judge for a settlement conference;
11. The status of any related cases pending before this or other courts;
12. Proposed deadlines for each of the following events. In proposing deadlines,
the parties should keep in mind the Case Management Order will contain
deadlines to govern this case and once the dates have been set in the Case
Management Order and in light of the age of this case, the court will vary
them only upon a showing of good cause. A request by counsel for extension
of discovery deadlines in any case that has been pending more than two years
must be accompanied by a certification stating the client is aware of and
approves of the requested extension. The court does not consider lawyers’
scheduling conflicts, settlement talks, or the scheduling of mediations to
constitute extraordinary circumstances warranting an extension. The parties
must propose the following:
a. If there is a dispute as to the need for and/or scope of discovery and/or
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as to the standard of review regarding the ERISA claims, a deadline
for plaintiff(s) to file a motion, not to exceed seven pages, entitled
“Motion for ERISA Discovery/Standard of Review Determination,”
summarizing its position and a deadline for defendant(s) to submit a
seven-page response brief. No replies may be filed. These deadlines
should be set as soon as practicable.
b. A deadline for amending the pleadings and a deadline for any motion
to supplement the administrative record applicable to the ERISA
claims.
c. A deadline for the completion of fact discovery for both ERISA
claims (if discovery is allowed) and state-law claims. Discovery
requests must be served and depositions noticed sufficiently in
advance of the discovery cutoff date to ensure reasonable completion
by the deadline, including time to resolve further discovery disputes.
Absent extraordinary circumstances, the court will not entertain
discovery disputes after this deadline;
d. A deadline for filing the administrative record for ERISA claims;
e. A date by which the parties shall have engaged in face-to-face good
faith settlement talks;
f. Any other matters that will aid the court and parties in resolving this
case in a just, speedy, and inexpensive manner as required by Federal
Rule of Civil Procedure 1.
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Case 2:24-cv-02650-KML Document 61 Filed 05/28/26 Page 13 of 14

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IT IS FURTHER ORDERED the parties shall file a proposed Case Management
Order – ERISA Case containing all the proposed dates, adapted as necessary because this
case involves both ERISA and state-law claims, using the form available on the court’s
website. The proposed Case Management Order must also be emailed in Word format to
Lanham_Chambers@azd.uscourts.gov.
Dated this 28th day of May, 2026.
Case 2:24-cv-02650-KML Document 61 Filed 05/28/26 Page 14 of 14