Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 1 of 18 PageID: 1229 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

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1 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 1 of 18 PageID: 1229 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ALEXANDER L. MENKES and STEPHEN J. WOLFE, individually and on behalf of all others similarly situated, Plaintiffs, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, QINETIQ NORTH AMERICA OPERATIONS, LLC, a Delaware corporation, QINETIQ NORTH AMERICA, INC., a Delaware corporation, WESTAR AEROSPACE & DEFENSE GROUP, INC., a Nevada corporation, and DOES (presently known individuals, partnerships, companies and/or other entities), inclusive, Defendants. Civil Action No (SDW) (MCA) OPINION January 29, 2013 WIGENTON, District Judge. Before the Court are two Motions to Dismiss Alexander L. Menkes ( Menkes ) and Stephen J. Wolfe s ( Wolfe ) Complaint ( Motions to Dismiss ). The first Motion to Dismiss was filed by The Prudential Insurance Company of America ( Prudential ) pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). The second Motion to Dismiss was filed by QinetiQ North America, Inc. 1 ( QinetiQ ) and Westar Aerospace & Defense Group, Inc. ( Westar ) pursuant to Federal Rule of Civil Procedure 12(b)(6). Also before the Court is Menkes s and Wolfe s Cross-Motion to Amend the Complaint ( Cross-Motion to Amend ). For the purposes of these Motions, the Court will refer to Menkes and Wolfe collectively as Plaintiffs and Prudential, QinetiQ, and Westar collectively as Defendants. 1 QinetiQ NA was formerly known as QinetiQ North America Operations, LLC until April (QinetiQ Br. 1.) 1

2 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 2 of 18 PageID: 1230 The Court has jurisdiction over this matter pursuant to 28 U.S.C Venue is proper under 28 U.S.C. 1391(b). This Court, having considered the parties submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, Defendants Motions to Dismiss are GRANTED and Plaintiffs Cross- Motion to Amend the Complaint is DENIED. FACTUAL AND PROCEDURAL HISTORY Plaintiffs were employed by Westar, an affiliate of QinetiQ, to work at a United States airbase in Kirkuk, Iraq from 2008 to 2009 pursuant to a Department of Defense ( DOD ) contract. (Compl. 2, 96, 112.) Specifically, Menkes was employed as an Aviation Physicians Assistant/Flight Surgeon and Wolfe was employed as an Academic Instructor. (Compl. 96, 112.) As employees of QinetiQ, Plaintiffs participated in the employee benefits plan established by QinetiQ. 2 (Compl. 99, 116.) QinetiQ paid for each employee s Basic Life and Accidental Death & Dismemberment coverage and Basic Long Term Disability coverage. (Compl. 101, 103, 105, 118, 120.) Also, QinetiQ offered three types of optional insurance policies for employees to purchase including: (1) Supplemental Long-term Disability ( Suppl. LTD ); (2) Supplemental Term Life insurance ( Suppl. Term Life ); and (3) Supplemental Accidental Death and Dismemberment insurance policies ( Suppl. AD&D ). (Compl. 2.) Menkes purchased three optional policies including the (1) Suppl. LTD, (2) Suppl. Term Life, and (3) Suppl. AD&D policies. (Compl. 101, 103, 105.) Wolfe purchased two optional policies including the (1) Suppl. LTD and (2) Suppl. Term Life policies. (Compl. 118, 120.) 2 Defendants maintain that QinetiQ served as Plan Administrator, contracted with Prudential to provide QinetiQ s employees with insurance benefits, and determined which employees were eligible for coverage. (See Compl. Ex. A at Summary Plan Description ( SPD ); Prudential Br. 3; Prudential Reply 4-5.) Plaintiffs claim that Prudential exclusively determined the claims, eligibility, and coverage of the insurance plans. (Pls. Opp n 2.) 2

3 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 3 of 18 PageID: 1231 Additionally, as required by the Defense Base Act, 42 U.S.C ( DBA ), QinetiQ obtained insurance for its employees working on the DOD contract in Iraq to provide coverage for injuries arising out of and in the course of employment occurring on any military base or land occupied by the U.S. for such purpose. (QinetiQ Br. 2-3); see 42 U.S.C The DBA coverage applied to injuries that QinetiQ employees sustained while working on the military base, including war-related injuries. (See QinetiQ Br. 3.) In July 2009, Menkes filed a claim for long-term disability with Prudential based on three injuries: (1) a back injury, (2) positive tuberculosis test, and (3) post-traumatic stress disorder. (Compl ) Subsequently, Menkes was notified that his claim was denied because [his] PTSD [was] due to a war, declared or undeclared and there [was] no impairment or need for restriction for [his] TB exposure or reports of back pain. 3 (Compl. Ex. C.) On August 7, 2009, Menkes filed a claim under the DBA seeking compensation for the three injuries he sustained during the course of his employment in Iraq (1) a back injury, (2) a positive tuberculosis test, and (3) post-traumatic stress disorder. (Collier Cert., Ex. C.) On January 4, 2012, Menkes settled his claims with QinetiQ and the DBA insurer and recovered $425,000 for his injuries along with $75,000 in counsel fees. (Collier Cert. Ex. D 62.) As part of the settlement terms, Menkes agreed to forever close any and all claims for compensation and medical benefits which [he] may have now or may at any time hereafter be asserted by him. (QinetiQ Br. 3; Collier Cert., Ex. D. 41.) A court order approving the settlement terms discharged QinetiQ of liability for any and all claims for compensation benefits, future medical expenses, penalties, interest, and attorney s fees and all costs arising out of or related to Menkes s injuries sustained in Iraq. (QinetiQ Br. 3; Collier Cert., Ex. E. at 4.) 3 The group certificates for the Long-Term Disability and Accidental Death & Dismemberment coverage contained war risk provisions which excluded from coverage disabilities or losses due to or resulting from war or an act of war. (See Compl. 2; Rome Cert. Ex. C.; Prudential Br. 4.) 3

4 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 4 of 18 PageID: 1232 According to Plaintiffs, Defendants engaged in deceptive and unconscionable practices against Plaintiffs... by drafting, designing, marketing, advertising, and selling insurance policies to defense contractors employees knowing that such policies would be of negligible or no value and that Prudential would deny the insurance claims based on the wartime exclusion. (Compl. 2.) On May 14, 2012, Plaintiffs filed this action against Defendants alleging six counts including: (1) violation of New Jersey Consumer Fraud Act (CFA), N.J. Stat. Ann. 56:8-1 et seq.; (2) violation of Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA), N.J. Stat. Ann. 56:12-13, et seq.; (3) breach of contract and the implied covenant of good faith and fair dealing; (4) intentional/negligent misrepresentation and/or omission; (5) punitive damages; and (6) alternatively, for violation of the consumer fraud law of the various states. Plaintiffs and the putative class seek to recover the insurance premiums they paid. (Pls. Opp n 3.) On May 23, 2012, Prudential filed a Motion to Dismiss Plaintiffs Complaint. That same day, QinetiQ and Westar separately filed a Motion to Dismiss Plaintiffs Complaint. On September 15, 2012, Plaintiffs opposed both Motions to Dismiss and cross-moved for leave to file an Amended Complaint. 4 On October 16, 2012, Prudential and QinetiQ filed reply briefs. 4 Plaintiffs attached a proposed Amended Complaint to their opposition brief. This Court finds that the proposed Amended Complaint is substantially similar to the original Complaint. The proposed Amended Complaint includes, inter alia, the following changes: (1) Plaintiffs deleted any reference to the New Jersey TCCWNA statute; (2) Plaintiffs deleted all references to the term life insurance policies; and (3) Plaintiffs seek to add a state law claim for breach of a fiduciary duty owed to the putative claimant subclass. (See Proposed Amended Complaint ( Prop. Am. Compl. ) at ; Pls. Opp n 4 n.3.) Other than these changes, Plaintiffs claims are substantively the same as those in the original Complaint. (See generally Compl.; Prop. Am. Compl.) In the interest of judicial efficiency, for purposes of these Motions, this Court will address the additions and revisions to Plaintiffs proposed Amended Complaint where appropriate and necessary. 4

5 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 5 of 18 PageID: 1233 STANDARDS OF REVIEW Motion to Dismiss The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege a short and plain statement of the claim showing that the pleader is entitled to relief. This Rule requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 requires a showing rather than a blanket assertion of an entitlement to relief ). In considering a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). If the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint should be dismissed for failing to show[ ] that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at According to the Supreme Court in Twombly, [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to 5

6 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 6 of 18 PageID: 1234 provide the grounds of his[/her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. 550 U.S. at 555 (internal citations omitted). The Third Circuit summarized the Twombly pleading standard as follows: stating... a claim requires a complaint with enough factual matter (taken as a whole) to suggest the required element. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). In deciding a motion to dismiss, [a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (quotations and emphasis omitted). Additionally, a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff s claims are based on the document. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Here, Plaintiffs explicitly rely on various Prudential policies in the Complaint, namely the Suppl. LTD, Suppl. AD&D, and Suppl. Term Life policies. Plaintiffs attached to the Complaint a copy of the insurance certificate for the Suppl. LTD policy along with the group insurance booklet. (Compl. Ex. A.) Prudential attached to its Motion to Dismiss copies of the Suppl. AD&D and Supp. Term Life policies along with the corresponding group insurance booklets. (Rome Cert. Exs. A, B, D.) This Court may properly consider these policies as they are integral documents and explicitly relied upon in Plaintiffs Complaint. 6

7 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 7 of 18 PageID: 1235 Heightened Pleading Standard under Fed. R. Civ. P. 9(b) for Fraud Claims Fed. R. Civ. P. 9(b) requires that [i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Fed. R. Civ. P. 9(b). Plaintiffs alleging fraud must state the circumstances of the alleged fraud[ulent act] with sufficient particularity to place the defendant on notice of the precise misconduct with which [it is] charged. Park v. M&T Bank Corp., No. 09-cv-02921, 2010 WL , at *5 (D.N.J. Mar. 16, 2010) (citing Lum v. Bank of America, 361 F.3d 217, (3d Cir. 2004)). Satisfaction of this standard requires Plaintiffs to allege dates, times, places and other facts with precision. Park, 2010 WL , at *5. Leave to Amend under Fed. R. Civ. P. 15(a) Pursuant to Fed. R. Civ. P. 15(a), once a response to a party s pleading is served, that pleading may be amended only by leave of court or by written consent of the adverse party. Rule 15(a) provides that leave to amend a pleading shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Leave to amend a complaint should be granted freely in the absence of undue delay or bad faith on the part of the movant as long as the amendment would not be futile and the opposing party would not suffer undue prejudice. Foman v. Davis, 371 U.S. 178, 182 (1962); Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 1984). [A] refusal of a motion for leave to amend must be justified, and the Third Circuit has identified the following as permissible justifications: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposition; (4) repeated failures to correct deficiencies with previous amendments; and (5) futility of the amendment. Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995). Amendment of the complaint is futile if the amendment will not cure the deficiency 7

8 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 8 of 18 PageID: 1236 in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss. Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). DISCUSSION I. Preemption Under The Employee Retirement Income Security Act With respect to all of Plaintiffs alleged claims, Defendants present two related preemption arguments arising under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001, et seq. Defendants argue that Plaintiffs claims are expressly preempted under 514(a) and implicitly preempted under 502(a). As discussed below, this Court agrees that Plaintiffs claims are both expressly and implicitly preempted by ERISA. A. Express Preemption Under 514(a) ERISA 514(a) contains a broad preemption clause, stating that the Act shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan unless the cause of action is exempt under 1003(a). 29 U.S.C. 1144(a). State laws include all laws, decisions, rules, regulations, or other State action having the effect of law. 29 U.S.C. 1144(c)(1). In determining whether ERISA s preemption clause applies to Plaintiffs claims, this Court must address two main arguments: (1) whether QinetiQ s insurance policy is an ERISA plan subject to ERISA s Safe Harbor Provision, 28 U.S.C. 1135; and (2) whether Plaintiffs claims relate to the benefits plan. See Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir. 1989); Way v. Ohio Cas. Ins. Co., 346 F. Supp. 2d 711, 714 (D.N.J. 2004) (citing Alston v. Atlantic Elec. Co., 962 F. Supp. 616, 622 (D.N.J. 1997)). 8

9 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 9 of 18 PageID: Whether QinetiQ s Insurance Plan is an ERISA Benefits Plan ERISA defines an employee welfare benefit plan as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing [benefits] for its participants or their beneficiaries, through the purchase of insurance or otherwise. 29 U.S.C. 1002(1). ERISA preemption was intended to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987). A benefits plan is not preempted by ERISA if it falls within the Safe Harbor Provision under 29 U.S.C and meets the following requirements: (1) [n]o contributions are made by an employer, (2) [p]articipation [in] the program is completely voluntary for employees, (3) [t]he sole functions of the employer [are] to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer, and (4) the employer generally receives no consideration in the form of cash or otherwise in connection with the program. 29 C.F.R (j). All four factors must be met for a plan to fall within the regulation s safe harbor. Weinstein v. Paul Revere Ins. Co., 15 F. Supp. 2d 552, 557 (D.N.J. 1998). Plaintiffs argue that QinetiQ s supplemental insurance policies fall within ERISA s Safe Harbor Provision because participation in the optional insurance policies was completely voluntary, Plaintiffs paid the entire premium for such optional policies, the sole function of Plaintiffs employers with respect to the optional policies was to permit publicizing of the plan, and the employers received no benefit in connection with the policies. (Pls. Opp n 3, ) 9

10 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 10 of 18 PageID: 1238 Plaintiffs further claim that Employer Defendants had no substantive role in the explanation of coverage, the initiation of coverage, the determination of benefits, or the administration of claims filed pursuant to the policies. (Pls. Opp n 6.) Defendants contend that QinetiQ s insurance plan does not fall within ERISA s Safe Harbor Provision because QinetiQ contributed to employees insurance coverage as part of the group plan and QinetiQ participated in administrating the insurance plans. (QinetiQ Reply 5-6.) The Court finds that the insurance policies at issue are indeed ERISA plans and that Plaintiffs claims do not fall within ERISA s Safe Harbor Provision. Although the Third Circuit has not squarely addressed this issue, several sister circuits have held that components of a benefits plan cannot be unbundled from the whole plan for purposes of determining whether it falls within the ERISA Safe Harbor Provision. See e.g., Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 538 (7th Cir. 2000) ( For purposes of determining whether a benefit plan is subject to ERISA, its various aspects ought not be unbundled. ); Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 463 (10th Cir. 1997) (finding that plaintiff could not sever her optional disability coverage from the rest of the benefits she received through her employer s plan to satisfy the ERISA safe harbor requirements); Glass v. United of Omaha Life Ins. Co., 33 F.3d 1341, 1345 (11th Cir. 1994) (recognizing that dependant coverage feature could not be severed from a plan and excluded from ERISA ); Sgro v. Danone Waters of N. Am., Inc., 532 F.3d 940, 943 (9th Cir. 2008) ( So long as [the employer] pays for some benefits, ERISA applies to the whole plan, even if employees pay entirely for other benefits. ). Here, for the purposes of ERISA coverage, QinetiQ s insurance plan must be viewed as a whole and not as individual components. Although Plaintiffs are correct in contending that QinetiQ did not contribute to employees supplemental policies, it is undisputed that QinetiQ 10

11 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 11 of 18 PageID: 1239 paid for employees basic insurance policies. Plaintiffs cannot sever the supplemental plan from the other benefits received simply to satisfy ERISA s Safe Harbor Provision. See Gaylor, 112 F.3d at 463. Accordingly, the QinetiQ insurance plan does not satisfy the first prong of the Safe Harbor regulation. Additionally, based on Plaintiffs allegations and the language in the policies, QinetiQ did more than simply permit the insurer to publicize the benefits and collect dues. (Prop. Am. Compl. 5, ) For instance, the Summary Plan Description provides that QinetiQ was the Plan Sponsor, served as the Plan Administrator, and expressly noted in the group insurance certificate that the supplemental policies were under your Employer s ERISA plan(s). (Compl. Ex A. at Summary Plan Description.) Additionally, Plaintiffs noted that QinetiQ itself publicized the optional, supplemental benefits. (Prop. Am. Compl. 5.) Based on these facts, this Court finds that QinetiQ s insurance plan was an ERISA plan and does not fall within the Safe Harbor provision. 2. Whether Plaintiffs Claims Relate to the ERISA Benefits Plan Having determined that QinetiQ s insurance plan falls within ERISA coverage, the remaining question is whether Plaintiffs claims relate to the plan and are thus preempted. See 29 U.S.C. 1144(a). A law relates to an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, (1990). Under ERISA 514(b)(2)(A), a state law that relates to an ERISA plan is not preempted if the law regulates insurance. The state law must be specifically directed toward entities engaged in insurance and must substantially affect the risk pooling arrangement between the insurer and insured. Ky Ass n of Health Plans, Inc. v. Miller, 538 U.S. 329, 342 (2003). ERISA s 11

12 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 12 of 18 PageID: 1240 preemption clause is not limited to state laws specifically designed to affect employee benefit plans, but also includes common law causes of action that relate to an employee benefit plan. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, (1987) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983)). In this case, between the Complaint and proposed Amended Complaint, Plaintiffs allege the following claims: (1) violation of New Jersey CFA; (2) breach of contract and the implied covenant of good faith and fair dealing; (3) intentional/negligent misrepresentation and/or omission; (4) breach of fiduciary duty; (5) punitive damages; and (6) alternatively, for violation of the consumer fraud law of the various states. 5 (See Compl.; Prop. Am. Compl.) This Court finds that all of Plaintiffs claims are based on common law and statutes of general application and are preempted by ERISA. a. Claims for Fraud, Misrepresentation, and States Deceptive Practices Acts Generally, courts have held that claims for misrepresentation and fraudulent inducement relating to an employee benefit plan are preempted by ERISA. See Pilot Life, 481 U.S. at 57 (claim for fraudulent inducement is preempted by ERISA); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir. 1990) (stating that the district court was clearly correct in holding that 514(a) preempts the Employees misrepresentation claims, since they relate to an employee benefit plan ); Beye v. Horizon Blue Cross Blue Shield of New Jersey, 568 F. Supp. 2d 556, 569 (D.N.J. 2008) (stating that ERISA preempted plaintiffs misrepresentation claims because they were entirely dependent on her rights to benefits under the terms of her ERISA plan... [and] must be measured against the benefits provided under the terms of Plaintiffs plan ). 5 For the purposes of these Motions, this Court notes that Plaintiffs deleted any reference to the New Jersey TCCWNA statute ; thus, this claim will not be addressed as it is moot. (Pls. Opp n 4, n.3.) 12

13 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 13 of 18 PageID: 1241 Similarly, although the Third Circuit has not specifically addressed whether ERISA broadly preempts state consumer fraud claims, several courts in this District have consistently found that such claims are preempted. See e.g., Thomas v. Aetna Inc., No , 1999 WL , at *9 (D.N.J. June 8, 1999) ( Because the terms of the Plan are critical to the resolution of the fraudulent inducement claim, the plaintiff s cause of action is sufficiently related to an ERISA plan to fall within the purview of ERISA s preemption clause. ); Grimes v. Prudential Financial, Inc., No , 2010 WL , at *18 (D.N.J. June 29, 2010) (finding that ERISA preempted CFA claim because Plaintiff s consumer fraud claim [was] premised on the alleged wrongful denial of benefits under the Plan, ma[de] reference to the Plan, and would require reference to the Plan to calculate recovery if Plaintiff proved successful ); D Alessandro v. Hartford Life & Acc. Ins. Co., No , 2009 WL , at *3 (D.N.J. May 1, 2009) (holding that ERISA preempted CFA claim because the claim relate[d] to the employee benefit plan since it require[d] reference to the policy... [and] would require interpretation of the policy ). In this case, Plaintiffs argue that their state law claims for fraud and misrepresentation are independent of any purported ERISA relationship and are based on Defendants malfeasance. (Pls. Opp n 15.) However, Plaintiffs claims under the CFA and for misrepresentation are primarily based on allegations of fraudulent inducement to pay premiums for supplemental insurance coverage and wrongful denial of benefits. (Compl , , ; Prop. Am. Compl , , ; Pls. Opp n ) Contrary to Plaintiffs arguments, these claims are predicated on QinetiQ s ERISA plan and necessitate an analysis of the benefits due under the policy. Put another way, this Court cannot properly address these claims without first determining if Plaintiffs could receive benefits under the policy. 13

14 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 14 of 18 PageID: 1242 Plaintiffs further contend that their claims are not preempted because they seek to recover the insurance premiums they paid, not benefits pursuant to a purported ERISA plan. (Pls. Opp n 3.) This argument is irrelevant as preemption under ERISA is determined by the nature of the claim and not simply by the remedy sought or based on a plaintiff s contention that he does not seek benefits under the plan. See e.g., Bernatowicz v. Colgate-Palmolive Co., 785 F. Supp. 488, 493 (D.N.J. 1992) aff d sub nom. Bernatowicz v. Colgate Palmolive Co., 981 F.2d 1246 (3d Cir. 1992) (finding that ERISA preempted plaintiffs state law claims even though plaintiffs assert[ed] that they are not challenging a determination of their eligibility for pension benefits or attempting to reverse a pension plan s denial of benefits ). Accordingly, this Court finds that Plaintiffs claims under the CFA, intentional/negligent misrepresentation and/or omission, and violation of states deceptive practices acts are sufficiently related to QinetiQ s benefits plan and are expressly preempted by ERISA. b. Claims for Breach of Contract and Implied Covenant of Good Faith and Fair Dealing Claim, and Breach of Fiduciary Duty Courts in this district have routinely held that claims styled as breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duty which challenge the denial of benefits in connection with an ERISA plan are preempted. See e.g., Urbanik v. ITT Corp., No , 2009 WL , at *4 (D.N.J. July 13, 2009) (finding that claims for breach of contract and breach of implied covenant of good faith and fair dealing were preempted by ERISA as they were based on wrongful denial of benefits); Schmelzle v. Unum Life Ins. Co. of Am., No , 2008 WL , at *3 (D.N.J. July 31, 2008) (holding that claims for breach of fiduciary duty, breach of contract, and breach of implied covenant of good faith and relate to the denial of benefits by an ERISA plan, and are preempted by ERISA ). Additionally, in Bicknell v. Lockheed Martin Group Benefits Plan, the Third Circuit held that a 14

15 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 15 of 18 PageID: 1243 claim for a breach of good faith and fair dealing was preempted by ERISA because the claim relate[d] to his employee benefits plan, as it arises out of the allegedly improper processing of his claim for benefits thereunder. 410 F. App x 570, 576 (3d Cir. 2011). Here, Plaintiffs claims for breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duty are all related to the existence and terms of QinetiQ s ERISA plan. In particular, Plaintiffs claims are largely premised on allegedly wrongful denial of benefits. (See Compl ; Prop. Am. Compl. 102, ) Accordingly, these claims are sufficiently related to the benefits plan at issue and are preempted by ERISA. c. Claim for Punitive Damages The Supreme Court has held that individuals filing claims relating to benefits under an ERISA plan are not free to obtain remedies under state law that Congress rejected in ERISA. Pilot Life, 481 U.S. at 54 ( The deliberate care with which ERISA s civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that ERISA s civil enforcement remedies were intended to be exclusive. ) Punitive damages are among the remedies rejected by Congress. See Pane, 868 F.2d at (affirming dismissal of claim for punitive damages finding that it was preempted by ERISA); Barber v. Unum Life Ins. Co. of Am., 383 F.3d 134, 140 (3d Cir. 2004) (holding that state remedy that allows an ERISA-plan participant to recover punitive damages for bad faith conduct by insurer is preempted by ERISA). In this case, based on relevant case law, ERISA preempts Plaintiffs claim for punitive damages. 15

16 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 16 of 18 PageID: 1244 B. Complete Preemption Under 502(a) In addition to finding express preemption under 514(a) of ERISA, this Court finds that Plaintiffs claims are preempted under 502(a) of ERISA. Section 502(a) of ERISA is a civil enforcement mechanism that has such extraordinary pre-emptive power that state law causes of action falling within its scope are preempted. Pascack Valley Hosp. v. Local 464A UFCW Welfare, 388 F.3d 393, (3d Cir. 2004) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004)); see ERISA 502(a), 29 U.S.C. 1132(a)(1)(B) (articulating that under ERISA 502(a), a participant may recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan ). As the Supreme Court has held, any 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. Aetna Health Inc., 542 U.S. at 210; see Pilot Life, 481 U.S. at 54 (recognizing that that ERISA s civil enforcement remedies were intended to be exclusive ). For instance, a claim that challenges the administration of or eligibility for benefits [ ] falls within the scope of 502(a) and is completely preempted. Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 270, 273 (3d Cir. 2001) (noting that if [Plaintiff s] claims fall within the scope of ERISA s civil enforcement provisions, they are completely preempted ). In Aetna Health Inc., the Supreme Court set forth a test for determining whether a cause of action falls within ERISA s scope of 502(a). Aetna Health Inc., 542 U.S. at 210. A cause of action is completely preempted by ERISA [1] if an individual, at some point in time, could have brought his claim under ERISA 502(a)(1)(B), and [2] where there is no other independent legal 16

17 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 17 of 18 PageID: 1245 duty that is implicated by a defendant s actions. Id. In Pascack, the Third Circuit adopted this test for evaluating preemption of claims under ERISA 502(a). See Pascack, 388 F.3d at 400. In this case, both prongs are satisfied. First, all of Plaintiffs claims fall within the realm of the administration of [ERISA] benefits. See Pryzbowski, 245 F.3d at 278. Notably, Plaintiffs claims could have been brought in a civil enforcement action under ERISA 502(a)(1)(B). Secondly, Plaintiffs claims are not based on any legal duty independent of ERISA. Plaintiffs claims are wholly intertwined with the interpretation and application of QinetiQ s ERISA plan and its terms. Thus, this Court finds that Plaintiffs claims are also preempted under 502(a). II. Menkes s Claims Under The Defense Base Act (DBA) Policy The Defense Base Act (DBA) provides the exclusive remedy for employees who sustain work-related injuries while working abroad on government contracts. 42 U.S.C. 1651(c); Colon v. U.S. Dept. of Navy, 223 F. Supp. 2d 368 (D.P.R. 2002) (noting that the DBA provided exclusive remedy for injuries sustained while working abroad). In accordance, the DBA requires government contractors to obtain workers compensation insurance for these employees. See id. In compliance with the DBA, QinetiQ procured insurance coverage for its employees working in Iraq. On August 7, 2009, Menkes filed a claim pursuant to the DBA for three injuries: (1) a back injury, (2) positive tuberculosis test, and (3) post-traumatic stress disorder. (Collier Cert. Ex. C.) Menkes settled this claim and received $425,000 in compensation and $75,000 in counsel fees. (Collier Cert. Ex. D.) As part of the settlement terms, Menkes released any claims relating to injuries for which he received compensation in connection with his DBA claim. (Collier Cert. Ex. D. 42.) Pursuant to a court order, QinetiQ was expressly discharged from any further liability relating to these claims. (Collier Cert. Ex. E.) 17

18 Case 2:12-cv SDW-MCA Document 44 Filed 01/29/13 Page 18 of 18 PageID: 1246 Menkes now seeks additional compensation for injuries that were part of his settlement under QinetiQ s DBA policies. First, as QinetiQ s DBA policies provided exclusive remedies for Menkes s injuries, these claims are preempted. Secondly, based on the settlement agreement, Menkes effectively released his claims based against QinetiQ. III. Plaintiffs Cross-Motion for Leave to Amend the Complaint At this juncture, the Court finds that Plaintiffs Cross-Motion to Amend would be futile. Plaintiffs proposed Amended Complaint was substantially similar to the Complaint and this Court addressed any key additions or revisions in this Opinion. In particular, the Court addressed Plaintiffs addition of a breach of fiduciary duty claim and found it to be preempted by ERISA. Accordingly, Plaintiffs motion is moot. CONCLUSION For the reasons stated above, Defendants Motions to Dismiss are GRANTED. Plaintiff s Cross-Motion to Amend is DENIED as moot. s/susan D. Wigenton, U.S.D.J. cc: Madeline Cox Arleo, U.S.M.J. 18