Lake v. Aetna Life Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SCOTT LAKE,

on behalf of himself and all

other similarly situated,

Plaintiff,

v. Case No. 8:20-cv-3010-VMC-TGW

AETNA LIFE INSURANCE COMPANY,

and PINELLAS COUNTY SCHOOL

BOARD,

Defendants.

/

ORDER

This matter comes before the Court upon consideration of

Defendant Pinellas County School Board’s Motion to Dismiss

Amended Complaint (Doc. # 58), filed on May 5, 2021, and

Defendant Aetna Life Insurance Company’s Motion to Dismiss

Amended Complaint and to Strike (Doc. # 61), filed on May 19,

2021. Plaintiff Scott Lake responded to each Motion on May

25, 2021, and June 9, 2021, respectively. (Doc. ## 62; 63).

For the reasons below, the School Board’s Motion is denied,

and Aetna’s Motion is granted in part and denied in part.

I. Background

Both the Court and the parties are familiar with the

facts of this putative class action. Thus, the Court need not

reiterate them in detail here. This case arose out of a denial

of insurance coverage for Lake’s prostate cancer treatment.

(Doc. # 53 at ¶ 58). Specifically, Aetna denied Lake’s request

to pre-authorize proton beam radiation therapy because his

plan “does not cover experimental or investigational services

except under certain circumstances.” (Id.). Lake appealed

this denial a number of times – both to Aetna and to the

School Board, the plan sponsor with whom Lake contracted –

but none of those appeals succeeded. (Id. at ¶¶ 4, 48, 60-

68). Despite these denials, Lake still underwent proton beam

radiation therapy. (Id. at ¶ 72).

On October 30, 2020, Lake initiated this putative class

action in state court. (Doc. # 1). On December 17, 2020, the

case was removed to this Court on the basis of Class Action

Fairness Act diversity jurisdiction. (Id.). Both Defendants

then moved to dismiss. (Doc. ## 9; 12). On March 26, 2021,

the Court granted the School Board’s motion, dismissing

Lake’s claim for breach of the implied covenant of good faith

and fair dealing, and granting leave to amend. (Doc. # 50).

On April 21, 2021, Lake filed an amended complaint. (Doc.

# 53). In the amended complaint, Lake seeks to represent a

nationwide class of other similarly situated individuals who

were denied coverage by Aetna for proton beam radiation

therapy. (Id. at ¶ 74). Lake also proposes a subclass for

Florida plan participants. (Id. at ¶ 75). The amended

complaint includes the following claims: tortious

interference with a contractual relationship against Aetna

(Count I), breach of contract against the School Board (Count

II), and declaratory and injunctive relief against Aetna

(Count III). (Doc. # 53). The amended complaint includes class

allegations against Aetna only. (Id. at ¶¶ 93-123).

Now, both the School Board and Aetna move to dismiss the

amended complaint. (Doc. ## 58; 61). Aetna also requests that

the Court strike the class allegations. (Doc. # 61 at 1).

Lake has responded to each Motion (Doc. ## 62; 63), and they

are now ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), the Court accepts as true the allegations

in the complaint and construes them in the light most

favorable to the plaintiff. Jackson v. Bellsouth Telecomms.,

372 F.3d 1250, 1262 (11th Cir. 2004). Further, the Court

favors the plaintiff with all reasonable inferences from the

allegations in the complaint. Stephens v. Dep’t of Health &

Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,

[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 provide

the grounds of his entitlement to relief 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)

(quotations and citations omitted). Courts are not “bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The

Court must limit its consideration to “well-pleaded factual

allegations, documents central to or referenced in the

complaint, and matters judicially noticed.” La Grasta v.

First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

Under Federal Rule of Civil Procedure 12(f), a court

“may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f). However, motions to strike are

considered drastic remedies, and are thus disfavored by

courts. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.

Supp. 2d 1345, 1348 (M.D. Fla. 2002). Indeed, they are

generally denied “unless the allegations have no possible

relation to the controversy and may cause prejudice to one of

the parties.” Agan v. Katzman & Korr, P.A., 328 F. Supp. 2d

1363, 1367 (S.D. Fla. 2004) (citations omitted).

III. Analysis

Both the School Board and Aetna move to dismiss the

claims against them. (Doc. ## 58; 61). Additionally, Aetna

requests that the Court strike Lake’s class allegations.

(Doc. # 61 at 1). The Court will address each Motion in turn.

A. The School Board’s Motion to Dismiss

The School Board moves to dismiss Count II – Lake’s claim

for breach of contract – arguing that it fails because “[t]he

allegations in the amended complaint are expressly

contradicted by [the School Board’s] denial letter.” (Doc. #

58 at 9). Lake responds that (1) “[t]he Court cannot accept

the contents of the denial letter as true at the dismissal

stage,” and (2) “[e]ven assuming the contents of that letter

were entirely truthful and accurate[,] . . . it raises factual

issues that cannot be resolved by the Court at this stage.”

(Doc. # 62 at 7, 10).

To state a cause of action for breach of contract under

Florida law, the plaintiff must allege: “(1) the existence of

a contract, (2) a breach of the contract, and (3) damages

resulting from the breach.” Textron Fin. Corp. v. Lentine

Marine Inc., 630 F. Supp. 2d 1352, 1356 (S.D. Fla. 2009)

(citation omitted). Here, Lake alleges that the School Board

“breached its contract for insurance coverage with [Lake] by

arbitrarily and wrongfully denying coverage for [proton beam

radiation therapy].” (Doc. # 53 at ¶¶ 71, 109). Specifically,

the School Board breached “the terms of his insurance plan .

. . by relying upon an outdated and arbitrary ‘Policy

Bulletin’ without ever reviewing the medical evidence

submitted by [Lake] and his providers” and “failing to provide

the full extent of insurance benefits owed to him, as [proton

beam radiation therapy] was medically necessary.” (Id. at ¶¶

109, 111). Lake was allegedly harmed by this breach because

he had “a right to receive [the] benefits.” (Id. at ¶ 113).

The School Board does not argue that Lake has

insufficiently pled the elements of such breach. Rather, it

argues that the allegations in the amended complaint are

clearly contradicted by the School Board’s denial letter,

which it attaches to its Motion. (Doc. # 58 at 9; Doc. # 58-

1). Thus, the Court must determine whether it can presently

consider the contents of the denial letter.

“Generally, a district court must ‘convert a [Rule

12(b)(6)] motion to dismiss into a motion for summary judgment

if it considers materials outside the complaint.” Moog Mktg.,

Inc. v. TD Bank, Nat’l Ass’n, No. 6:18-cv-1765-JA-TBS, 2019

WL 2492772, at *1 (M.D. Fla. Feb. 5, 2019) (quoting Day v.

Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005)). However,

under the incorporation by reference doctrine, the Court may

consider a document attached to a motion to dismiss “if the

attached document is: (1) central to the plaintiff’s claim;

and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134

(11th Cir. 2002). A document is “central to a complaint when

it is a necessary part of [the plaintiff’s] effort to make

out a claim.” Kalpakchian v. Bank of Am. Corp., 832 F. App’x

579, 583 (11th Cir. 2020) (internal quotation marks and

citation omitted). A document is undisputed when its

authenticity is not challenged. Horsley, 304 F.3d at 1134.

Here, Lake does not take issue with the denial letter

being both central to the complaint and authentic. (Doc. # 58

at 7-9; Doc. # 62 at 7-10). However, Lake argues that “the

truth of the matters asserted in the self-serving denial

letter that the School Board attaches to its Motion are in

dispute, and it should not be considered by the Court on its

Motion.” (Id. at 8).

The Court agrees that the School Board is improperly

invoking the denial letter to prove a disputed fact at this

stage. In the amended complaint, Lake alleges that the School

Board breached the contract by, in part, “relying upon an

outdated and arbitrary ‘Policy Bulletin’ without ever

reviewing the medical evidence submitted by [Lake] and his

providers.” (Doc. # 53 at ¶ 109). The School Board contends

that the denial letter contradicts this allegation, because

it states that “it reviewed and considered everything

submitted by [Lake],” including which documents it reviewed.

(Doc. # 58 at 10). This attempt to disprove Lake’s allegations

is premature at the motion-to-dismiss stage. See Morgan v.

Ocwen Loan Servicing, LLC, 795 F. Supp. 2d 1370, 1374 n.4

(N.D. Ga. 2011) (“Defendants assert that the Court may

consider documents referenced in the complaint[.] . . .

However, Defendants are attempting to use these documents to

dispute a central factual allegation of Plaintiff’s

complaint, compared to the securities cases wherein courts

have considered on a motion to dismiss documents required to

be filed with the SEC of which the contents, and not the

truth, were at issue.”); see also Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018) (“[I]t

is improper to assume the truth of an incorporated document

if such assumptions only serve to dispute facts stated in a

well-pleaded complaint. This admonition is, of course,

consistent with the prohibition against resolving factual

disputes at the pleading stage.”).

The School Board cites to Caldwell v. Nationstar

Mortgage, LLC, --- F. App’x ----, 2021 WL 1229754 (11th Cir.

Mar. 31, 2021), for the proposition that the contents of the

denial letter control, rather than the allegations in the

amended complaint. (Doc. # 58 at 9). However, that case states

the rule that when an exhibit attached to the complaint –

rather than to a motion to dismiss – conflicts with the

allegations in the complaint, the exhibit controls. Caldwell,

2021 WL 1229754, at *2 n.2. Because this argument forms the

sole basis for the School Board’s Motion, the Court declines

to dismiss Count II. See Moog Marketing, 2019 WL 2492772, at

*2 (“Accordingly, the Court declines to consider the deposit

agreement at the motion-to-dismiss stage. Because TD’s entire

motion to dismiss depends on the evaluation of the terms of

the deposit agreement, the motion must fail.”).

B. Aetna’s Motion to Dismiss and to Strike

In Aetna’s Motion, it seeks dismissal of all of the

claims against it, both for failure to state a claim and for

lack of standing. (Doc. # 61 at 1, 18). Aetna also requests

that the Court strike Lake’s class allegations. (Id. at 1).

The Court will begin by addressing Lake’s standing to pursue

his claims against Aetna. See Crowder v. Andreu, Palma, Lavin

& Solis, PLLC, No. 2:19-cv-820-SPC-NPM, 2021 WL 1338767, at

*1 (M.D. Fla. Apr. 9, 2021) (“As a threshold jurisdictional

issue, the Court must consider standing first.”).

1. Standing

First, Aetna argues that Lake “lacks standing to assert

a claim against Aetna because he . . . has failed to

articulate a plausible injury attributable to Aetna which can

be remedied by a favorable order.” (Doc. # 61 at 18-19). Lake

responds that he has standing to pursue his claims because he

“has stated a tortious interference claim, and alleged that

Aetna wrongfully denied [his] insurance claim for [proton

beam radiation therapy]. Aetna’s denial of [Lake’s] claim,

and its mandate that the School Board follow suit, caused

[him] to suffer an economic loss equal to the out-of-pocket

cost of paying for the [proton beam radiation] therapy.” (Doc.

# 63 at 11).

To establish constitutional standing, three elements

must be met: (1) the plaintiff “must have suffered an injury

in fact – an invasion of a legally protected interest which

is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical,” (2) “there must

be a causal connection between the injury and the conduct

complained of – the injury has to be fairly traceable to the

challenged action of the defendant, and not the result of the

independent action of some third party not before the court,”

and (3) “it must be likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(internal quotation marks and citations omitted). “The party

invoking federal jurisdiction bears the burden of proving

standing.” Bischoff v. Osceola Cnty., 222 F.3d 874, 878 (11th

Cir. 2000).

Here, the Court agrees with Lake that he has standing to

pursue his claim for tortious interference against Aetna. As

discussed more in depth below, Lake has adequately alleged an

injury in the form of denial of his proton beam radiation

therapy claim by virtue of Aetna’s interference with his

insurance contract. (Doc. # 53 at ¶¶ 93-104); see also

Bischoff, 222 F.3d at 878 (“[W]hen standing becomes an issue

on a motion to dismiss, general factual allegations of injury

resulting from the defendant’s conduct may be sufficient to

show standing.”). Traceability is satisfied because Lake

alleges that Aetna had a substantive role in inducing the

School Board to deem his treatment medically unnecessary. See

(Doc. # 53 at ¶¶ 8-9 (alleging that Aetna “forc[ed]” the

School Board to deny coverage)); see also Focus on the Family

v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th

Cir. 2003) (“[E]ven harms that flow indirectly from the action

in question can be said to be ‘fairly traceable’ to that

action for standing purposes.”). And, these injuries would be

redressable by a money judgment against Aetna. (Doc. # 53 at

¶¶ 103, 123); see Resnick v. AvMed, Inc., 693 F.3d 1317, 1324

(11th Cir. 2012) (“Plaintiffs allege a monetary injury and an

award of compensatory damages would redress that injury.”).

Regarding Lake’s claim for declaratory judgment, “to

demonstrate that there is a case or controversy that satisfies

Article III’s standing requirement when a plaintiff is

seeking declaratory relief – as opposed to seeking damages

for past harm – the plaintiff must allege facts from which it

appears that there is a ‘substantial likelihood that he will

suffer injury in the future.’” A&M Gerber Chiropractic LLC v.

GEICO Gen. Ins. Co., 925 F.3d 1205, 1210-11 (11th Cir. 2019)

(quoting Malowney v. Fed. Collection Deposit Grp., 193 F.3d

1342, 1346 (11th Cir. 1999)). “Injuries sustained from ‘past

conduct’ will not support a claim for declaratory relief

absent a showing ‘that such conduct has continued or will be

repeated in the future.’” MSPA Claims 1, LLC v. Kingsway Amigo

Ins. Co., No. 16-20212-CIV-KING/TORRES, 2017 WL 4621159, at

*4 (S.D. Fla. Aug. 28, 2017) (citation omitted).

Here, Lake “seeks a declaration that he is entitled to

coverage for [proton beam radiation therapy].” (Doc. # 63 at

12; Doc. # 53 at ¶ 118). However, nowhere in the amended

complaint does Lake allege that he is seeking additional

proton beam radiation therapy. To the contrary, Lake alleges

only that he has completed his therapy “with success.” (Doc.

# 53 at ¶ 72). Thus, Lake seeks a judgment as to Aetna’s past

conduct – its previous denial of coverage, and lacks standing

to do so.1 See Hitchcock v. USAA Cas. Ins. Co., No. 6:18-cv-

1986-JA-EJK, 2020 WL 364600, at *2 (M.D. Fla. Jan. 22, 2020)

(“The only relief Hitchcock seeks in Count II is a declaratory

judgment. But Hitchcock alleges only injury in the past, and

1. Insofar as Lake seeks a declaration regarding his rights

under the insurance plan, Lake does not allege that Aetna is

a party to the plan. See (Doc. # 53 at ¶ 4 (“Lake contracted

with the School Board for health insurance and had a valid

and enforceable agreement that required the School Board to

not unreasonably deny coverage.”)); see also (Doc. # 63 at 9

(noting a contract between Aetna and the School Board, not

between Aetna and Lake)). To the contrary, the amended

complaint alleges that Aetna tortiously interfered with the

plan between Lake and the School Board. (Doc. # 53 at ¶¶ 9,

40-48, 66, 71). The Court will not enter a declaratory

judgment as to the scope of a contract against a defendant

who is not alleged to be a party thereto. See First Auto.

Serv. Corp., N.M. v. First Colonial Ins. Co., No. 3:07-cv-

682-TJC-TEM, 2008 WL 816973, at *4 (M.D. Fla. Mar. 25, 2008)

(“It is essential that the defendant in a declaratory judgment

action be the party [] whose interest will be affected by the

decree.” (citation omitted)); see also Presson v. Haga, No.

1:18-cv-00099-SNLJ, 2018 WL 4279445, at *3 (E.D. Mo. Aug. 31,

2018) (“Defendant is not a party to that contract; at minimum,

Plaintiffs provide no explanation as to how Defendant, as a

non-signatory to the contract, should nonetheless be deemed

bound by it. And, thus, there are no rights and obligations

to be declared under that contract as between Defendant and

Plaintiffs.”).

she does not identify an actual, ongoing controversy as to

USAA’s current or future duties to her. She seeks a ruling as

to the propriety of USAA's past conduct – conduct that

allegedly already caused her injury in the form of a $2.9

million excess judgment. Such a ruling would merely be an

advisory opinion.”).

Lake also lacks standing to pursue injunctive relief for

the same reason. See Houston v. Marod Supermarkets, Inc., 733

F.3d 1323, 1328-29 (11th Cir. 2013) (“The ‘injury-in-fact’

demanded by Article III requires an additional showing when

injunctive relief is sought. In addition to past injury, a

plaintiff seeking injunctive relief ‘must show a sufficient

likelihood that he will be affected by the allegedly unlawful

conduct in the future.’” (citation omitted)). And even if

Lake had standing to pursue an injunction, “injunctive relief

is not a proper claim for relief in and of itself, but rather

a remedy that is available upon a finding of liability on a

claim.” GlobalOptions Servs., Inc. v. N. Am. Training Grp.,

Inc., 131 F. Supp. 3d 1291, 1302 (M.D. Fla. 2015). Therefore,

Lake cannot assert a standalone claim for injunctive relief.

See Id. (“Because injunctive relief is not a proper claim,

Counts X and XI will also be dismissed without prejudice.”).

Accordingly, Count III is dismissed for lack of standing.

2. Tortious Interference with a Contractual

Relationship

Next, Aetna argues that Count I – Lake’s claim for

tortious interference with a contractual relationship – fails

because: (1) “Aetna, as claims administrator, was not a

stranger to the transaction,” and (2) Lake “has not pleaded

a single fact to support his far-fetched theory, instead only

parroting the elements of the tort.” (Doc. # 61 at 3, 9-13).

Lake responds that “where, as here, a plaintiff alleges that

a ‘non-stranger’ defendant has acted in bad faith or employed

improper methods to interfere in a contractual relationship,

the defendant’s privilege to interfere is limited,” and that

he has plausibly pled his claim. (Doc. # 63 at 5).

To state a claim for tortious interference with a

contractual relationship under Florida law, the plaintiff

must sufficiently allege: “(1) the existence of a contract,

(2) the defendant’s knowledge of the contract, (3) the

defendant’s intentional procurement of the contract’s breach,

(4) absence of any justification or privilege, and (5) damages

resulting from the breach.” Glob. Tel*Link Corp. v. Scott,

652 F. Supp. 2d 1240, 1248 (M.D. Fla. 2009).

Generally, “a claim for tortious interference with

contract cannot lie where the alleged interference is

directed at a business relationship to which the defendant is

a party.” Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d

1285, 1294 (11th Cir. 2001). Thus, “the interfering defendant

must be a third party, a stranger to the business

relationship.” Id. (quoting Salit v. Ruden, McClosky, Smith,

Schuster & Russell, P.A., 742 So.2d 381, 386 (Fla. 4th DCA

1999)); see also Merrett v. Liberty Mut. Ins. Co., No. 3:10-

cv-1195-HWM-MCR, 2012 WL 37231, at *4 (M.D. Fla. Jan. 6, 2012)

(“To maintain an action for tortious interference with

contractual rights, a plaintiff must establish that a

separate entity, third-party or stranger interfered with the

contract by influencing, inducing or coercing one of the

parties to break the contract.”).

However, “the privileged interference enjoyed by a party

that is integral to a business relationship is not absolute.”

Poole & Kent Co. v. Tetra Tech, Inc., No. 09-21749-CIV-

GOLD/MCALILEY, 2010 WL 11505134, at *5 (S.D. Fla. Sept. 2,

2010) (quoting O.E. Smith’s Sons, Inc. v. George, 545 So.2d

298, 299 (Fla. 5th DCA 1989)). “Where there is a qualified

privilege to interfere with a business relationship, the

privilege carries with it the obligation to employ means that

are not improper.” Morsani v. Major League Baseball, 663 So.2d

653, 657 (Fla. 2d DCA 1995). “In other words, the privilege

does not encompass the purposeful causing of a breach of

contract.” McCurdy v. Collis, 508 So.2d 380, 384 (Fla. 5th

DCA 1987). Whether the interference was justified or

privileged “is a fact-intensive inquiry that requires ‘an

examination of the defendant’s conduct, its motive, and the

interests it sought to advance.’” Duty Free Ams., Inc. v.

Estee Lauder Cos., 797 F.3d 1248, 1280 (11th Cir. 2015)

(quoting Sec. Title Guar. Corp. of Balt. v. McDill Columbus

Corp., 543 So.2d 852, 885 (Fla. 2d DCA 1989)).

Here, even assuming that Aetna is not a stranger to the

business or contractual relationship, the Court is not in a

position to determine whether Aetna’s conduct was justified

or privileged. Accepting the facts alleged in the amended

complaint as true, Aetna “induce[d] the School Board . . . to

rely on [its] unjustified description of [proton beam

radiation therapy as] ‘experimental or investigational’ or

‘not medically necessary,’” purposely basing these

determinations on “outdated medical evidence” so as “to

reduce the amount of [proton beam radiation therapy] claims

that are approved across all of its plans.” (Doc. # 53 at ¶¶

41-43). The Court will be in a better position to determine

whether Aetna’s conduct was privileged at summary judgment.

And, the Court finds that Lake has sufficiently pled the

remaining elements of its claim for tortious interference of

a contractual relationship. The amended complaint avers the

existence of Lake’s contract for health insurance, that Aetna

was aware of the contract as it administered the insurance

plan, that it intentionally induced the School Board to deny

Lake’s request for reimbursement of proton beam radiation

therapy despite it being medically necessary, and that Lake

was damaged by that breach. (Doc. # 53 at ¶¶ 40-45; 93-104).

Nothing more is needed at this stage, and the Court therefore

denies the Motion as to Count I. See Salazar v. Am. Sec. Ins.

Co., No. 8:13-cv-2002-EAK-TBM, 2014 WL 978405, at *3 (M.D.

Fla. Mar. 12, 2014) (“In Plaintiff’s complaint, he claimed

that there was a mortgage contract between Plaintiff and Chase

that Defendant knew of, that Defendant has intentionally

withheld the benefits required to be paid under that contract

without justification or privilege, and that Plaintiff has

suffered damages. . . . Plaintiff has claimed all elements of

tortious interference and there is a plausible set of

circumstances where Plaintiff could receive relief.”).

3. Class Allegations

Finally, Aetna moves to strike the class allegations,

arguing that (1) Lake “lacks standing to assert claims in his

own right[, and therefore] . . . cannot represent a class,”

(2) there is no typicality, and (3) the amended complaint

“presents individual questions of fact and law, failing the

predominance requirement.” (Doc. # 61 at 19). Lake responds

that dismissal of his class allegations is premature at this

stage and additional discovery should be permitted. (Doc. #

63 at 16). In any case, Lake contends that his claims are

typical of the class, and that individual questions of fact

and law will not predominate. (Id. at 17-18).

As to Aetna’s first argument, the Court has already found

that Lake has standing to pursue his claim for tortious

interference. And, the Court agrees with Lake that Aetna’s

request to evaluate the sufficiency of the class allegations

is premature. Indeed, “arguments attacking class allegations

‘are better suited to an opposition to a motion for class

certification.’” Desmond v. CitiMortgage, Inc., No. 1:12-cv-

23088, 2015 WL 845571, at *5 (S.D. Fla. Feb. 25, 2015)

(citation omitted). Dismissal of class allegations at the

pleading stage “is an extreme remedy appropriate only where

a defendant demonstrates from the face of the complaint that

it will be impossible to certify the classes alleged by the

plaintiff regardless of the facts the plaintiff may be able

to prove.” Lawson v. Life of the S. Ins. Co., 286 F.R.D. 689,

695 (M.D. Ga. 2012) (internal quotation marks and citation

omitted) (emphases omitted).

With additional fact discovery, the Court cannot say

that it would be impossible for Lake to show that Aetna’s

directing plan sponsors to deny claims for proton beam

radiation therapy is typical of the class. Nor is the Court

convinced at this stage that it would be impossible for Lake

to meet the predominance requirement. See Desmond, 2015 WL

845571, at *5 (“[T]he Court noted that potential barriers to

certification pointed out by the defendant in a motion to

strike class allegations ‘may fall away or at least become

more manageable’ after discovery, denied the motion to strike

class allegations and explained that it would decide whether

to certify a class ‘on a more fully developed record.’”

(quoting James D. Hinson Elec. Contracting Co. v. AT & T

Servs., Inc., No. 3:13-cv-29-TJC-JRK, 2014 WL 1118015, at *5

(M.D. Fla. Mar. 20, 2014))); see also Romano v. Motorola,

Inc., No. 07-CIV-60517, 2007 WL 4199781, at *3 (S.D. Fla.

Nov. 26, 2007) (“To dismiss Plaintiff’s class allegation

before discovery would be an acknowledgment by this court

that class certification is impossible, an assertion this

Court is not inclined to make. Therefore, Defendant’s motion

to strike class allegations is denied.”).

Lastly, Aetna has not argued, let alone demonstrated,

that the class allegations are “redundant, immaterial,

impertinent, or scandalous.” Fed. R. Civ. P. 12(f) (noting

the standard to strike material from a complaint); see also

Desmond, 2015 WL 845571, at *6 (denying a motion to strike

class allegations because the defendant had not shown that

the allegations were “redundant, immaterial, impertinent, or

scandalous”). Thus, the Motion is denied as to this relief.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Pinellas County School Board’s Motion to

Dismiss Amended Complaint (Doc. # 58) is DENIED.

(2) Defendant Aetna Life Insurance Company’s Motion to

Dismiss Amended Complaint and to Strike (Doc. # 61) is

GRANTED in part and DENIED in part.

(3) Count III is DISMISSED for lack of standing.

(4) Defendants’ answers to the amended complaint (Doc. # 53)

are due by July 12, 2021.

DONE and ORDERED in Chambers, in Tampa, Florida, this

28th day of June, 2021.

tina 90. Husmerby Coe

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

21