Martinez v. Duarte et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Bert Martinez,
Plaintiff,
v.
Beatrice Lynn Duarte, et al.,
Defendants.
No. CV-25-00130-PHX-DJH
ORDER
Before the Court are two Motions to Dismiss. (Docs. 39 & 49). The first is brought
by Defendant Beautrice Lynn Duarte (“Duarte”) and her husband (collectively the
“Duartes”) (Doc. 39) and the second is brought by Defendant Kaiser Foundation Health
Plan Incorporated (“Kaiser”) (Doc. 49). Pro se Plaintiff Bert Martinez (“Martinez”) has
filed his Opposition to both Motions and both Duarte and Kaiser have filed a Reply.
(Docs. 41, 51, 45 & 52). For the reasons set forth below, the Court will grant both Motions
to Dismiss and dismiss this action.
I. Background
Duarte was in El Salvador when tragedy struck. (Doc. 38 at 4). She suffered a
medical emergency and had to be transported by helicopter back to her home in Los
Angeles. (Id.). At the time, Duarte was insured by Kaiser. (Id. at 5). She was helicoptered
out of El Salvador by a company called Air Ambulance. (Id. at 6). Somewhere in that
chronology, Duarte’s husband1 signed a contract with Air Ambulance to fly her to a
1 Martinez attached an alleged contract for services with Air Ambulance and signed by
Duarte’s husband to his Second Amended Complaint (“SAC”). (Doc. 38 at 11).
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hospital near her home. Because she was insured, Air Ambulance billed Kaiser in the
amount of $729,030.00. (Id. at 7). Kaiser paid only $94,852.69 out of that amount. (Id.)
Martinez states that he was assigned Air Ambulance’s rights as to the rest of the money.
(Id. at 11). In his SAC he brings the following claims against Duarte, her husband, and
Kaiser: (1) breach of contract; (2) breach of fiduciary duty; and (3) request for appointment
of arbitrator. (Id. at 4–6).
II. Legal Standard
A successful motion to dismiss under Rule 12(b)(6) must show either that the
complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its
theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (citing Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). A complaint that sets
forth a cognizable legal theory will survive a motion to dismiss if it contains “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) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim has facial plausibility 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. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.
In ruling on a 12(b)(6) motion, the Court takes the plaintiff's well-pleaded factual
allegations as true and construes them in the light most favorable to the plaintiff. Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual
allegations are not entitled to a presumption of truth and are not sufficient to defeat a
12(b)(6) motion. Iqbal, 556 U.S. at 678. A complaint does not need to have detailed
factual allegations, but it must have more than a “the-defendant-unlawfully-harmed-me
accusation.” Id.
III. Discussion
The Court finds that Martinez’s breach of contract claim against Duarte and her
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husband cannot go forward because the No Surprises Act (“NSA”) precludes enforcement
of Martinez’s contract. Moreover, his claim for the Court to appoint an arbitrator under
the NSA is not legally cognizable. As for the claims against Kaiser, the Court finds that it
does not have either general or specific jurisdiction over the company. Therefore, the Court
will grant the Duartes’ and Kaiser’s Motions to Dismiss.
A. Duarte’s Motion to Dismiss
Duarte attacks the sufficiency of Martinez’s breach of contract claim against her and
husband by stating that the NSA preempts the state law breach of contract claim. (Doc. 39
at 3). She argues that the NSA was passed to prohibit the kind of conduct that the contract
seeks to enforce, i.e., those that require Duarte to pay the difference between the amount
Martinez billed Kaiser and the amount Kaiser paid Martinez. (Doc. 39 at 4–5). In response,
Martinez states that a valid contract exists between the parties, predicated on “informed
consent or contractual obligation.” (Doc. 41 at 3). As an aside, he argues that at this point
in the litigation the Court should not decide the issue. (Id.)
1. Contracts for Balance Billing and the NSA
Congress passed the NSA to protect patients from surprise medical bills in situations
where they have no choice over whether their provider is in-network. See Consolidated
Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182, 2758–890 (2020).
Especially important to Congress when it passed the NSA was the elimination of surprise
balance billing. Id. Before the Act’s passage, when an out of network healthcare provider
proffered medical care to a patient, the patient’s insurance company could simply refuse to
pay the bill or decide what amount to pay and leave the patient holding the bag for the rest.
Id.
Three types of situations can make it so that a patient does not have a choice who
her provider is: (1) when the insured receives emergency care from an out-of-network
provider, see 42 U.S.C. § 300gg–131; (2) when the insured receives non-emergency
medical services at an in-network facility but the services themselves are provided by an
out of network provider, see id. § 300gg–132; and (3) when the insured is transported by
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an out-of-network air-ambulance provider, see id. § 300gg–135. In these three situations,
the NSA caps the insured’s share of liability to out-of-network providers at an amount
comparable to what the insured would have owed had she received care from an in-network
provider. This is called the qualifying payment amount (“QPA”). See 42 U.S.C. § 300gg–
111(a)(3)(E)(i) (setting rates to determine liability for both the patient and the insurer,
otherwise called the qualifying payment amount).
The QPA is important for the insured, the insurer, and the provider. The insured
would be billed as if the out-of-network provider were in network, meaning that the insured
would not have to cover any costs greater than the QPA. Id. § 300gg-111(a)(1)(C)(ii)–(iii),
(3)(H)(ii), (b)(1)(A)–(B). This process is the same for air-ambulance providers. See 42
U.S.C. § 300gg-112. The insured does not have to pay more than the QPA to an out-of-
network air ambulance provider. Id. If an out-of-network service provider is unhappy with
the QPA they have received from the insurer, the statute provides a means for them to seek
more compensation. After a provider submits a bill for an out-of-network service, the
insurer has thirty days to respond by either issuing some type of payment, or by providing
a notice denying payment. Whichever response may follow, if the provider does not like
the insurer’s response, the provider can then open up an initial period of negotiation for
thirty days. § 300gg-111(a)(1)(C)(iv), (b)(1)(C), (c)(1)(A). If contentions remain between
the provider and the insurer, both parties can then seek independent dispute resolution
(“IDR”) where an arbitrator will determine how much the insurer must pay the provider.
§ 300gg-111(c)(1)(B), (4)(A). The arbitrator’s decision is binding on both parties and not
subject to judicial review except under the circumstances described in the Federal
Arbitration Act. §§ 300gg-111(c)(5)(E)(i), 300gg-112(b)(5)(D). The final amount is offset
by the patient’s cost-sharing obligation and any amounts already paid by the insurer.
§ 300gg-111(a)(1)(C)(iv)(II), (b)(1)(D).
The present situation falls squarely within the protections against balance billing
codified in the NSA. The SAC alleges that Duarte is insured by Kaiser and that Air
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Ambulance2 provided Duarte out-of-network services when Duarte suddenly fell ill in El
Salvador and needed to be helicoptered out of the country. Kaiser, as Duarte’s insurer,
paid Air Ambulance $94,852.69 for the cost of transporting Duarte out of El Salvador and
to safety. Unhappy with the amount paid by Kaiser, Martinez now seeks to obtain the
balance from Duarte and her husband. The NSA was passed to prevent exactly this type
of situation.
The contract Martinez references3 has a clause called “Guarantee of Payment &
Assignment of Benefits.” (Doc. 38 at 11, Ex. 3). The clause states the following: “I agree
to pay AIR AMBULANCE 911’s charges for the Services, including but not limited to any
co-payments, deductibles or other expenses not covered by insurance.” (Id. (emphasis
added)). But that is exactly the type of conduct the NSA prohibits. See 42 U.S.C. § 300gg-
112 (stating that the insured does not have to pay more than the QPA for an out-of-network
air ambulance provider). Making the insured pay the difference between what is owed and
what insurance has paid is balance billing and prohibited by statutory mandate under the
NSA. (Id.) “[A] contract which violates or contravenes a federal or state constitution,
statute, or regulation is illegal, invalid, unenforceable, and void.” 17A Am. Jur. 2d
Contracts § 229 (2008) (footnotes omitted). Therefore, setting aside the preemption issue
raised by the Duartes,4 the Court finds that Martinez has not stated enough facts or a legally
cognizable theory for the Court to find that he has pleaded a viable breach of contract action
2 The SAC alleges that Martinez is the assignee of Air Ambulances’ rights.
3 The contract was signed by Duarte’s husband, not Duarte herself (presumably because
Duarte was incapacitated). Any issues surrounding this discrepancy are not fully briefed
by the parties but need not be addressed as the Martinez seeks to enforce the agreement
solely to collect on the unpaid balance, which is prohibited by the NSA.
4 Congress has only entirely preempted state law in three instances: (1) Section 301 of the
Labor Management Relations Act; (2) Section 502(a)(1)(B) of the Employee Retirement
Income Security Act of 1974; and (3) Sections 85 and 86 of the National Bank Act. Sullivan
v. American Airlines, 424 F.3d 267 (2d Cir.2005) (interpreting the Supreme Court of the
United States decision in Beneficial National Bank v. Anderson, 539 U.S. 1, (2003)); see
also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (adopting
this reasoning and holding the same). The Court will not task itself to say that all state law
breach of contracts claims are forever preempted by the NSA at this time.
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against Duarte and her husband. See Smilecare Dental Group v. Delta Dental Plan, 88
F.3d 780, 783 (9th Cir. 1996) (stating that the Court may dismiss a claim when it is not
based on a cognizable legal theory). Additionally, because the breach of contract claim is
not legally cognizable, the Court finds that leave to amend as to the breach of contract
would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996)
(stating that futility is good reason to deny leave to amend).
2. Martinez’s Request for Appointment of Arbitrator under the
NSA
Martinez’s SAC asked the Court to compel the parties to arbitration and appoint an
arbitrator to resolve this dispute. (Doc. 38 ¶¶ 27–29). Duarte points out that the NSA does
not allow for such relief. (Doc. 39 at 9). The Court is inclined to agree.
The NSA provides a mechanism and an established procedure for arbitrating such
claims. See 42 U.S.C. § 300gg-112. Martinez acknowledges the existence of “federally
mandated Independent Dispute Resolution (IDR) process under the No Suprises Act
(NSA)” and ask “that the Court acknowledge the applicability of the NSA and comple the
parties to participate in the IDR process.” (Doc. 38 at ¶¶ 3, 29). He says “Kaiser failed to
respond and would not participate in the NSA’s IDR process.” (Id. at ¶ 8). Notably,
however, the statute does not require Duarte, the insured, to participate in the IDR process.
See 42 U.S.C. § 300gg-112 (stating who may participate in the IDR process, leaving out
the insured). Indeed, Martinez seems to acknowledge as much. See e.g., Doc. 38 ¶ 27
(“The NSA establishes a mandatory Independent Dispute Resolution process for payment
disputes between out-of-network providers and insurers.”) (emphasis added); (Doc. 38
at ¶ 28) (“The QPA (Qualifying Payment Amount) mechanism is central to determining
fair payment for ALL parties.”). Duarte is neither an out-of-network provider or insurer.
Under these circumstances, the Court finds that Martinez has not stated a legally cognizable
claim to force either Duarte and her husband to engage in the IDR process with him. See
Smilecare Dental Group, 88 F.3d at 783. Because this claim, like the breach of contract
claim against Duarte, is also not legally cognizable, the Court finds that leave to amend
should not be granted because it would be futile. Carrico v. City and Cty. of San Francisco,
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656 F.3d 1002, 1008 (9th Cir. 2011).
B. Kaiser’s Motion to Dismiss
Kaiser argues that the Court has neither general nor specific personal jurisdiction
over Kaiser. (Doc. 49 at 5–6). Martinez says that Kaiser is subject to both. (Doc. 51 at 3).
The Court agreed with Kaiser.
A plaintiff always has the burden to establish that proper personal jurisdiction exists
when opposing a motion to dismiss. Marvix Photo, Inc. c. Brand Techs., Inc., 647 F.3d
1218, 1223 (9th Cir. 2011). However, “the plaintiff need only make a prima facie showing
of jurisdictional facts.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th
Cir. 2004). “Where. . . there is no applicable federal statute governing personal jurisdiction,
the district court applies the law of the state in which the district court sits.” Id. (referencing
Fed. R. Civ. P. 4(k)(1)(A)).
Arizona’s long arm statute is co-extensive with federal due process requirements;
therefore, a personal jurisdictional analysis under Arizona law is the same as a federal
analysis. Atkins v. Calypso Systems, Inc., 2015 WL 5856881 at *2 (D. Ariz. Oct. 8, 2015).
Under the Due Process Clause, “[a]lthough a nonresident’s physical presence within the
territorial jurisdiction of the court is not required, the nonresident generally must have
certain minimum contacts. . . . such that the maintenance of the suit does not offend the
traditional notions of fair play and substantial justice.” Walden v. Fiore, 571 U.S. 277, 283
(2014); see also Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021).
A court may assert general or specific personal jurisdiction over a nonresident defendant.
Daimler AG v. Bauman, 571 U.S. 117, 122 (2014).
1. General Personal Jurisdiction
To provide support that it is not subject to the Court’s general jurisdiction, Kaiser
states that it is incorporated and has its principal place of business in California. (Doc. 49
at 5). Martinez argues that Kaiser is registered to do business in Arizona, thereby
supporting a finding that Kaiser is subject to general personal jurisdiction. (Doc. 51 at 3).
General jurisdiction exists when the nonresident defendant maintains “continuous
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and systematic” contacts with the forum state, so much as to render the nonresident “at
home.” Id. at 127 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)). The Ninth Circuit will evaluate a defendant’s minimum contacts based
on the contacts’ “[l]ongevity, continuity, volume, economic impact, physical presence, and
integration into the [forum] state’s regulatory or economic markets.” Gonzalez v. United
Seating and Mobility LLC, 2024 WL 3226550, at *2 (D. Ariz. Jun. 28, 2024) (citing Mavrix
Photo, Inc., 647 F.3d 1218, 1224 (9th Cir. 2011)).
The Court finds that it does not have general personal jurisdiction over Kaiser.
Kaiser is incorporated under the laws of California. (Doc. 49 at 5–6). Likewise, its
principal place of business is in California where it is headquartered and from where its
officers and directors manage its operations. (Id. at 5). According to Kaiser, it does not
“advertise, deliver, manage, or operate health plans in Arizona.” (Doc. 49 at 7).
Additionally, Kaiser “does not own property, lease property, have an office, maintain
records, or advertise or solicit business in Arizona.” (Id.) Martinez meanwhile maintains
that Kaiser is registered to do business in Arizona. (Doc. 51 at 3). But that alone cannot
confer the Court with general personal jurisdiction over Kaiser. See Pac. Sci. Energetic
Materials Co. (Arizona) LLC v. Ensign-Bickford Aerospace & Def. Co., 2011 WL
4434039, at *5, fn. 4 (D. Ariz. Sept. 23, 2011) (stating that merely registering to do business
in Arizona does not confer general jurisdiction based on this Arizona case: Armstrong v.
Aramco Services Co., 746 P.2d 917, 924 (Ariz. Ct. App. 1987); see also McCard v. Circor
Int’l, Inc., 2021 WL 1212745, at *4 (E.D. Cal. Mar. 31, 2021) (same); see also Chatwal
Hotels & Resorts LLC v. Dollywood Co., 90 F. Supp. 3d 97, 105 (S.D.N.Y. 2015) (same).
Therefore, the Court finds that it does not have general personal jurisdiction over Kaiser.
2. Specific Personal Jurisdiction
Kaiser also argues that the Court does not have specific personal jurisdiction over
it. Kaiser argues that it did not purposefully avail itself of the privilege of doing business
in Arizona, nor does the conduct alleged by Martinez arise out of or relate to the forum in
any way. (Doc. 49 at 6–8). To counter, Martinez contends that by paying Duarte’s
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insurance claim to Air Ambulance, an Arizona corporation, Kaiser has subjected itself to
specific personal jurisdiction. (Doc. 51 at 2).
Specific jurisdiction may be asserted against a nonresident defendant if the
controversy arises from or is related to the defendant’s specific contact with the forum
state. Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414 (1984). The Ninth
Circuit follows a three-prong test for analyzing whether specific jurisdiction has been
established:
(1) the non-resident defendant must purposefully direct his activities or consummate
some transaction with the forum or resident thereof; or perform some act by which
he purposefully avails himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-
related activities; and
(3) the exercise of jurisdiction must comport with fair play or substantial justice,
i.e. it must be reasonable.
Schwarzenegger, 374 F.3d at 802. A plaintiff bears the burden of satisfying the first two
prongs of the test. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). If the
plaintiff satisfies the first two prongs, the burden then shifts to the defendant to “present a
compelling case that the exercise of jurisdiction would not be reasonable.” Id. at 476–78.
The “purposefully availment” requirement in the first prong ensures that a defendant will
not be hauled into a jurisdiction solely because of “‘random,’ ‘fortuitous,’ or ‘attenuated’
contacts.” Id. at 475.
At the Motion to Dismiss stage, the burden is on Martinez, at least on the first two
prongs to establish specific personal jurisdiction. Burger King Corp, 471 U.S. at 475.
Martinez argues that by paying a claim to Air Ambulance, an Arizona company, Kaiser
purposefully directed its activities towards Arizona. (Doc. 51 at 2). Payment of the claim,
Martinez alleges, is conduct that arises out of or gives rise to Kaiser’s forum-related
activities. (Id.) The Court disagrees. The conduct Martinez references occurred entirely
in El Salvador (where Duarte suffered her medical emergency) between Air Ambulance
and two California residents (Duarte and her husband). And although Martinez received
payment from Kaiser, a California corporation, that is not sufficient for the Court to find
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that it purposefully directed its acts to Arizona. See Thuney v. Lawyer’s Title of Arizona,
2019 WL 467697, at *6 (D. Ariz. Feb. 6, 2019), judgment entered sub nom. Thuney v.
Lawyer’s Title of Arizona Inc., 2019 WL 13197981 (D. Ariz. Apr. 5, 2019) (stating that
money transfers are normally not a sufficient basis for a federal court to exercise specific
jurisdiction, especially when the transfer is done at the plaintiff’s request). Therefore, the
Court finds that it lacks specific jurisdiction over Kaiser.
Leave to amend may be denied when “the court determines that the allegation of
other facts consistent with the challenged pleading could not possibly cure the deficiency.”
Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
Here, there are no facts consistent with the alleged unpaid balance that would give the
Court jurisdiction over Kaiser. Thus, any amendment to Martinez’s SAC would be futile
and amendment is therefore properly denied. Carrico, 656 F.3d at 1008.
IV. Count Two: Violation of Duty
In his SAC, Martinez alleges Kaiser violated “Arizona fiduciary principles and the
No Suprises Act, 42 U.S.C. § 300gg–111(c)” when it failed “to act in good faith and deal
fairly when processing claims” and “failed to timely respond to billing and failed to initiate
or participate in the federally required IDR process.” (Doc. 38 at ¶¶ 23–26). Because the
Court lacks jurisdiction over Kaiser, this claim will also be dismissed.
V. Attorney Fees
Duarte requests her attorneys’ fees under A.R.S § 12-341.01(A) in her Motion to
Dismiss. (Doc. 39 at 10). The statute specifically provides that “[i]n any contested action
arising out of a contract, express or implied, the court may award the successful party
reasonable fees.” Ariz. Rev. Stat. § 12–341.01(A). “The proper inquiry for determining
whether a claim “arise[s] out of a contract” is whether the claim could not exist ‘but for’
the breach or avoidance of contract. Harris v. Maricopa Cnty. Superior Ct., 631 F.3d 963,
974 (9th Cir. 2011) (internal quotation marks omitted). The current action arose out of a
contract dispute. Martinez brought this case because of a contract signed between Air
Ambulance and Duarte’s husband and Martinez alleged a breach of contract claim.
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(Doc. 38 at 4). Martinez’s only response to Duarte’s request for fees is that he believes
they are premature at this stage. (Doc. 41 at 5). Though determining reasonableness of
the fees may be premature, determining Duarte’s entitlement to fees is not. The Court finds
that Duarte is entitled to attorneys fees under A.R.S. § 12–341.01(A).
Accordingly,
IT IS ORDERED that Defendant Beautrice Lynn Duarte’s Motion to Dismiss
(Doc. 39) for failure to state a claim is granted and Plaintiff Bert Martinez’s Second
Amended Complaint as to Defendant Beautrice Lynn Duarte is dismissed, with prejudice.
IT IS FURTHER ORDERED that Defendant Kaiser Foundation Health Plan
Incorporated’s Motion to Dismiss (Doc. 49) for lack of jurisdiction is granted and Plaintiff
Bert Martinez’s Second Amended Complaint against Defendant Kaiser Foundation Health
Plan Incorporated is dismissed, with prejudice.
IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment
accordingly and close this matter.
IT IS FINALLY ORDERED that Beautrice Lynn Duarte may file a motion for
costs and attorneys’ fees in accordance with Local Rule of Civil Procedure 54.2 within
fourteen (14) days of the entry of this Order.
Dated this 10th day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
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