Rowe Plastic Surgery of New Jersey, L.L.C. et al v. Anthem Blue Cross Blue Shield of Colorado

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
N o 23-CV-4536 (RER) (JAM)
_____________________
R OWE PLASTIC SURGERY OF N EW J ERSEY, L.L.C.; AND NORMAN M AURICE
R OWE, M.D., M.H.A., L.L.C.
VERSUS
ANTHEM BLUE C ROSS BLUE SHIELD OF COLORADO
___________________
MEMORANDUM & ORDER
___________________
RAMÓN E. REYES, JR., District Judge:
Plaintiffs Rowe Plastic Surgery of New Jersey, L.L.C. and Norman Maurice Rowe,
M.D., M.H.A., L.L.C. (“Plaintiffs”) filed suit against Anthem Blue Cross Blue Shield of
Colorado (“Defendant” or “Anthem”), asserting New York state law claims for breach of
contract, unjust enrichment, promissory estoppel, and fraudulent inducement. Defendant
now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted.
After carefully reviewing the record, and for the reasons set forth herein, the Court
grants Defendant’s motion.
BACKGROUND
I. 	Factual Background
This case, like over “30 nearly identical lawsuits filed” in this District and the
Southern District, arises from a payment dispute between Plaintiffs, two plastic surgery
practices, and an insurance company, Anthem. (ECF No. 1 (“Compl.”) ¶ 12); Rowe Plastic
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Surgery of N.J., L.L.C. v. Aetna Life Ins. Co., 23-cv-8140 (JGK), 2025 WL 1786416, at *1
(S.D.N.Y. June 27, 2025) (citation omitted) (“Rowe VII”). The facts of this case do not
differ significantly from the cases that have come before.
Plaintiffs are not part of Anthem’s provider network and are therefore treated as
out-of-network providers. (Compl. ¶ 16). As such, Plaintiffs are not in contract with
Anthem. (Id. ¶ 17).
Prior to performing a breast reduction surgery on non-party RK, Plaintiffs allegedly
spoke to an Anthem representative on the phone about RK’s coverage. (Id. ¶¶ 18, 19,
33). According to Plaintiffs, the Anthem employee represented that Anthem would
reimburse them “based upon the 80th percentile of FAIRHealth . . . an industry pricing
term that means [Anthem] would pay an amount equal to 80th percentile of FAIRHealth
of the UCR.”1 (Id. ¶¶ 21, 22). Plaintiffs allege that this was a unilateral offer that they
accepted by performing RK’s procedure. (Id. ¶¶ 23, 32).
Although Plaintiffs billed Anthem a total of $300,000 and used the industry
standard billing codes, Anthem “partially performed its obligation” by issuing a payment
of $2,760.34 and breached the alleged contract made by Anthem’s employee on the
phone. (Id. ¶¶ 34–36, 38, 39). Plaintiffs claim that Anthem intentionally incorrectly
1 UCR is a method used by insurance providers to calculate reimbursements to out-of-network providers.
(Compl. ¶ 24). The insurer calculates the price of a procedure by using a percentile threshold (here 80%)
of the “usual and customary” cost for the service charged by similar providers in the same geographic area.
(Id. ¶¶ 25–29).
FAIRHealth is a database used by insurers as “a reliable source for provider pricing and for determining
UCR.” (Id. ¶ 31).
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calculated the “80th percentile of FAIRHealth resulting in underpayment.” (Id. ¶¶ 41–46,
53–56).
II. 	Related Litigation
In 2023, the Honorable Jed Rakoff dismissed with prejudice one of Plaintiffs’ many
lawsuits against a different insurer for failure to state a claim. Rowe Plastic Surgery of
N.J., L.L.C. v. Aetna Life Ins. Co., 705 F. Supp. 3d 194, 204 (S.D.N.Y. 2023) (“Rowe I”).
Like this case (and the others), Plaintiffs alleged that the insurer represented on a phone
call that it would reimburse them “for 80% of the cost charged by other similar medical
providers.” Rowe I, 705 F. Supp. 3d at 198. There, the court held that each of Plaintiffs’
four claims, identical to those brought here, were meritless. Id. at 202–06. The Second
Circuit affirmed. Rowe Plastic Surgery of N.J., L.L.C. v. Aetna Life Ins. Co., No. 23-8083
(DC) (SLC) (MP), 2024 WL 4315128, at *5 (2d Cir. Sept. 27, 2024) (summary order)
(“Rowe III”).
After Rowe I, other cases filed by the plaintiffs were dismissed for substantially the
same reasons that the Circuit later affirmed in Rowe III. See, e.g., Rowe Plastic Surgery
of N.J., L.L.C. v. AETNA Life Ins. Co., No. 23 Civ. 8529 (DLC), 2024 WL 382143 (S.D.N.Y.
Feb. 1, 2024) (“Rowe II”); Rowe v. Aetna Health & Life Ins. Co., 22 Civ. 9427 (AT) (OTW),
2025 WL 618556 (S.D.N.Y. Feb. 25, 2025) (“Rowe IV”); Rowe Plastic Surgery of N.J.,
L.L.C. v. Aetna Life Ins. Co., No. 22 Civ. 7900 (JLR) (OTW), 2025 WL 1603919 (S.D.N.Y.
June 6, 2025) (“Rowe V”); Rowe Plastic Surgery of N.J., L.L.C. v. Aetna Life Ins. Co., No.
22 Civ. 8713 (JLR) (OTW), 2025 WL 1603920 (S.D.N.Y. June 6, 2025) (“Rowe VI”); see
also, e.g., Rowe Plastic Surgery of N.J., L.L.C. v. United Healthcare, No. 23-CV-4352
(AMD) (JAM), 2024 WL 4309230 (E.D.N.Y. Sept. 26, 2024).
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III. 	Procedural History
On June 20, 2023, Plaintiffs filed their complaint. (ECF No. 1). After a premotion
conference in anticipation of Anthem’s pending motion to dismiss, the Court granted
Plaintiffs’ motion to stay, pending the resolution of two relevant appeals: Rowe III and
Park Ave. Podiatric Care, PLLC v. Cigna Health and Life Ins. Co., No. 23-1134 (ECL)
(SALM) (MAK), 2024 WL 2813721 (2d Cir. June 3, 2024) (summary order). (ECF Nos.
10, 11; Order Dated 1/29/2024).
On June 17, 2024, after the Second Circuit decided Park Avenue, Defendant filed
a letter arguing that Plaintiffs’ claims were preempted by ERISA, and this Court ordered
Plaintiffs to show cause why the stay should not be lifted and the case dismissed. (ECF
No. 12; Order dated 6/18/2024). Plaintiffs responded, and the Court ordered that the stay
would remain in effect pending the decision in Rowe III. (ECF No. 13; Order dated
7/03/2024).
The Court construed a letter update from Defendant on Rowe III as a motion for a
premotion conference and held a premotion conference. (ECF Nos. 14, 15, 17; Order
dated 10/24/24).
Defendant now moves to dismiss the complaint. (ECF Nos. 21, 22 (“Def.’s Mot.”),
27 (“Def.’s Reply”)). Plaintiffs oppose. (ECF No. 25 (“Pls.’ Opp.”). Defendant filed two
notices of supplemental authority. (ECF Nos. 28, 29).
LEGAL STANDARD
To survive a Rule 12(b)(6) 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) (quoting Bell Ad. Corp. v. Twombly, 550 U.S.
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544, 570 (2007)). In deciding a motion to dismiss, a court accepts as true all factual
allegations in the complaint and draws all reasonable inferences in the plaintiff’s favor.
See Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). Dismissal for failure
to state a claim “is appropriate when ‘it is clear from the face of the complaint . . . that the
plaintiff’s claims are barred as a matter of law.’” Biocad JSC v. F. Hoffmann-La Roche,
942 F.3d 88, 93 (2d Cir. 2019) (quoting Parkcentral Glob. Hub Ltd. v. Porsche Auto.
Holdings SE, 763 F.3d 198, 208–09 (2d Cir. 2014)).
DISCUSSION
In an effort to avoid beating a very dead horse, this opinion relies on the correct
and well-reasoned arguments from opinions in this District, the Southern District of New
York, and the Second Circuit that have addressed essentially identical issues between
Plaintiffs and various insurance providers. For the following reasons, the Court grants
Defendant’s motion to dismiss.
I. 	Plaintiffs’ claims are preempted by ERISA
Defendant argues that RK is a member of an ERISA-governed health plan, and as
such, Plaintiffs claims “fall within ERISA’s expansive pre-emption provisions under
Section 514.” (Def.’s Mem. at 13–15). In support, Defendant attaches the plan description
for RK’s health insurance coverage. (ECF No. 24-1 (“Plan”)). Plaintiffs counter that the
Plan is irrelevant and inadmissible without converting Defendant’s motion to one for
summary judgment, and in any event, their claims are not preempted by ERISA. (Pls.’
Opp. at 6–17).
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First, the Court finds, as other have, that it can consider RK’s Plan in the context
of a Rule 12(b)(6) motion. 2 Plaintiffs’ arguments that their claims are “based on
[Defendant’s] actions and words and not RK’s Plan” have already been considered and
rejected by other courts and affirmed in Park Avenue. (Pls.’ Opp. at 7); Park Avenue,
2024 WL 2813721, at *3 (“[W]hether [the patient’s] plan was an ERISA-regulated plan,
and whether an out-of-network provider like [Anthem] was the recipient of any duty under
the plan, are threshold questions that rely on the terms of the plan and are necessary to
resolve in order to advance [Anthem]'s challenge to the merits stage.”); see e.g., Norman
Maurice Rowe, M.D., M.H.A., L.L.C. v. UnitedHealthcare Serv., LLC, No. 23-CV-0516
(OEM) (ARL), 2024 WL 4252045, at *3 (E.D.N.Y. Sept. 20, 2024) (“Because the plan's
terms and effects were relied upon in Plaintiffs’ Amended Complaint, and integral to its
adjudication, the Court considers the Plan Summary as incorporated by reference.”); see
also Rowe Plastic Surgery of New Jersey, L.L.C. v. Aetna Life Ins. Co., No. 23-CV-3632
(SJB) (LKE), 2025 WL 1940325, at *5, *5 n.3 (E.D.N.Y. July 15, 2025) (same) (“Rowe
VIII”).
Plaintiffs attempt to avoid this result by not using the term “plan,” “health plan” or
“ERISA” in the operative complaint, unlike their previously dismissed complaints, does
not escape this result. As in Park Avenue, the “complaint presupposes the existence of a
relationship between [Anthem] and [RK] through a health insurance plan” that provides
out-of-network benefits. Park Avenue, 2024 WL 2813721, at *3. And “Plaintiffs would not
2 Here, the Plan makes clear that it is governed by ERISA. (Plan at 132) (“Your health benefit Plan is
sponsored by your employer and subject to the Employee Retirement Income Security Act of 1974 (ERISA)
and . . . you have a right to bring a civil action under Section 502(a) of ERISA . . . .).
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have reached out to [Anthem] had it not first determined that [Anthem] was responsible
for administering [RK]'s plan.” Rowe VIII, 2025 WL 1940325, at *5, *5 n.3.
It follows that ERISA preempts Plaintiffs’ claims.
ERISA preempts any state law that “relate[s] to any [ERISA] employee benefit
plan.” 29 U.S.C. § 1144(a). “A state law relates to an ERISA benefit plan when it has a
connection with or reference to such a plan, or when the existence of [an ERISA] plan is
a critical factor in establishing liability.” Rowe VIII, 2025 WL 1940325, at *4 (citations and
quotation marks omitted). “To that end, ‘[a]ny state-law cause of action that duplicates,
supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear
congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.”
Id. (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004)).
Here, Plaintiffs claims “all arise under state law and seek payment in connection
with medical services rendered” to RK. Rowe v. Aetna Life Ins. Co., No. 23 Civ. 8297
(LGS), 2025 WL 2644190, at *3 (S.D.N.Y. Sept. 15, 2025) (“Rowe IX”). “As in Park Ave.,
‘any legal duty’ [Anthem] ‘has to reimburse [Plaintiffs] arises from its obligations under the
patient's ERISA plan, and not from some separate agreement or promise,’ and thus
‘[Plaintiffs’] claims are expressly preempted by ERISA § 514(a).’” Id. (quoting Park
Avenue, 2024 WL 2813721, at *2). The Court is unpersuaded by Plaintiffs’ arguments to
the contrary.
II. 	Plaintiffs Fail to State a Claim under 12(b)(6)
“Even if some, or all, of Plaintiffs’ claims are not preempted by ERISA,” each claim
fails as “a matter of [state] law largely for the same reasons that the Second Circuit
affirmed in dismissing Plaintiffs’ case in” Rowe III. Rowe VIII, 2025 WL 1940325, at *7.
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The amended complaint pleads claims for breach of contract, unjust enrichment,
promissory estoppel, and fraudulent inducement. (Compl. ¶¶ 10–13). All of which rely on
the phone call between Plaintiffs and Anthem and the alleged statement that Anthem
would cover “an amount equal to 80th percentile of FAIRHealth of the UCR.” (Id. ¶ 22).
“As courts have repeatedly held,” the phone conversation with Anthem “did not
create a contract and did not constitute a promise to pay a particular sum. It was a benefits
verification call.” Rowe Plastic Surgery of New Jersey, L.L.C. v. Aetna Life Ins. Co., No.
23 Civ. 7049 (DLC), 2026 WL 158610, at *2 (S.D.N.Y. Jan. 20, 2026) (“Rowe X”); see
also, Rowe VII, 2025 WL 1786416, at *2 (citing Rowe I, 705 F. Supp. 3d at 203). Thus,
Plaintiffs’ breach of contract claims fails as a matter of law.
Plaintiffs remaining claims also fail as a matter of law. “[T]o recover under a theory
of unjust enrichment, the plaintiff must show that ‘the services were performed for the
defendant,’ and not at the ‘behest of someone other than the defendant.’” Rowe III, 2024
WL 4315128, at *4 (quoting Kagan v. K-Tel Ent., Inc., 172 A.D.2d 375, 376 (1st Dept.
1991) (emphasis in original)). Here, Plaintiffs claim no such thing.
Similarly, Plaintiffs do not plead a “clear and unambiguous promise” as required to
plead a promissory estoppel claim. Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d
39, 44 (2d Cir. 1995) (citations omitted). “Here, Plaintiffs allege that [Anthem] verified the
scope of the patient's out-of-network benefits during a single phone call . . . but the
Complaint is devoid of any allegations that [Anthem] ‘promised to pay a particular amount’
for the surgery or any particular services, let alone all of the services that could have been
rendered as part of the surgery.” Rowe VI, 2025 WL 1603920, at *5 (quoting Rowe I, 705
F. Supp. 2d at 204) (citation omitted). As Rowe III explained, “[a] promise is not ‘clear and
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unambiguous’ where the allegations are premised on an ambiguity or where the alleged
promise is conditional upon further agreements or negotiations.” Rowe III, 2024 WL
4315128, at *4.
Lastly, Plaintiffs fail to state a fraudulent inducement claim. Plaintiffs have
“repurposed the allegations underlying their breach of contract claim to allege a fraudulent
inducement claim,” Id. at *5, by alleging that Anthem “intentionally represented” that it
would reimburse “based on 80th percentile of FAIRHealth” when Anthem “knew its claim
processing system had no capacity to ensure the claims were paid using 80th percentile
FAIRHealth,” (Compl. ¶¶ 77, 78). “This is insufficient to allege a misrepresentation
‘collateral to’ the allegations supporting their breach of contract claims. Rowe III, 2024
WL 4315128, at *5 (quoting Wall v. CSX Transp., Inc., 471 F.3d 410, 416 (2d Cir. 2006)).
CONCLUSION
The Court has considered all the parties’ arguments, and to the extent not
specifically addressed, those arguments are either moot or without merit. For the reasons
set forth above, the Court grants Defendant’s motion to dismiss and the complaint is
dismissed with prejudice.
The Clerk of Court is respectfully directed to enter judgment dismissing the case
with prejudice and to close the case.
SO ORDERED.
/s/ Ramón E. Reyes, Jr.
RAMÓN E. REYES, JR.
United States District Judge
Dated: February 26, 2026
Brooklyn, New York
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