BERKERY v. METROPOLITAN LIFE INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN C. BERKERY, CIVIL ACTION

Plaintiff,

NO. 21-26-KSM

v.

METROPOLITAN LIFE INSURANCE

COMPANY, et al.,

Defendants.

MEMORANDUM

MARSTON, J. January 22, 2021

This matter involves a pro se plaintiff seeking to proceed in forma pauperis in a civil

action, in which he attempts to sue an insurance company and its dental insurance program

because they denied him benefits allegedly owed to him under his policy and sought

reimbursement for $1,200 that they had overpaid. (See Doc. Nos. 1–2.) In his complaint,

Plaintiff John C. Berkery asserts claims against Defendants Metropolitan Life Insurance

Company and MetLife Veterans Affairs Dental Insurance Program (“VADIP”) (collectively,

“Defendants”) for breach of contract, common law fraud and deceit, bad faith under 42 Pa. Cons.

Stat. Ann. § 8371, violations of the Pennsylvania Unfair Trade Practices and Consumer

Protection Law, 73 Pa. Cons. Stat. Ann. §§ 201-1–201-9.2 (“UTPCPL”), and violations of

Pennsylvania’s Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq. (“UIPA”). (Doc. No. 2.)

At this stage, the Court must consider first, whether to permit Berkery to proceed in

forma pauperis, and second, whether Berkery’s complaint passes muster under the screening

process mandated by 28 U.S.C. § 1915(e). For the reasons that follow, although we will grant

the plaintiff leave to proceed in forma pauperis, we will dismiss the complaint for lack of subject

matter jurisdiction.

I. Factual Background

The following facts are taken from the complaint, and are liberally construed in the light

most favorable to Plaintiff.

In 2013, MetLife began offering veterans a discounted dental plan, the VADIP. (Id. at ¶

7.) Berkery’s dental policy with Defendants was “in full force and effect” between December 1,

2018 and November 30, 2019. (Id. at ¶ 8.)

Berkery alleges that his dentist, Dr. Valdes, performed $2,400 worth of crown work over

the course of four visits, from March 2019 to January 2020. (Id. at ¶¶ 8–9.) On March 5, 2019,

Defendants pre-approved the claim for $1,200, and did not provide a deadline by which the work

had to be completed. (Id. at ¶ 8; see also id. at p. 37 (“She sent to you for a pre-authorization of

her bill of $2,400 ($600 per tooth, 4 teeth). You authorized said work and paid the covered 50%

of the amount, $1,200.”).) Nonetheless, Defendants denied the claim after his January 14, 20201

appointment, which Berkery asserts was the fourth and final visit related to the same crown work

that had been pre-approved the year before. (Id. at ¶ 10; but see id. at p. 37 (“The authorized and

approved work involved about four visits over the course of 2019, which work was duly

performed.”).)

1 Berkery also claims that the crown work took longer than anticipated because of the COVID-19

pandemic. (See, e.g., Doc. No. 2 at ¶ 9 (“Dr. Valdes performed the work during the period between

March 2019 and January 2020, involving four visits. She had to close her office during part of this period

due to COVID. To this day she still isn’t open on a full-time basis.”); id. at p. 39 (“You gave the dentist

no deadline when the work had to be completed. COVID delayed it somewhat.”).) However, Berkery

does not plead any facts showing how the pandemic prolonged the crown work. Even liberally construing

Berkery’s complaint, as we must, we cannot find this assertion to be plausible, given that the dental work

began in March 2019—about a year before COVID-19 shut down a large number of operations across the

state—and ended in mid-January 2020, approximately two months before any Pennsylvania businesses

were forced to shut down.

MetLife demanded reimbursement for the $1,200, claiming that it had overpaid (see, e.g.,

id. at p. 40), and Berkery appealed that decision. (See id. at p. 37 (May 19, 2020 Ltr.).) Berkery

also threatened taking legal action. (See id. at pp. 38–39.)

On July 2, 2020, an appeal specialist from MetLife responded to Berkery’s May 19 letter

(see id. at p. 40) and wrote, inter alia:

You have completed the first level of appeal regarding an overpayment totaling

$1,200.00 for services performed on January 14, 2020 . . . . According to our

records, a claim was previously received for dental services performed on January

14, 2020. At the time of receipt, our records reflected active dental coverage in

effect. Therefore, the claim was processed and benefits totaling $1,200.00 were

issued to Dr. Veronica Valdes on January 24, 2020 . . . .

Subsequent to the processing of this claim, we received notification that the

premiums were not paid, and coverage cancelled on November 2019. . . . As this

policy does not provide benefits for services performed after the termination date

of coverage and the claim was processed prior to receipt of this termination date,

an overpayment in the amount of $1,200.00 was identified for the January 14,

2020 claim. The overpayment team was notified and requests for refund were

issued.

(Id. (emphasis added); see also id. at p. 42 (“[T]here is a premium payment discrepancy which

ca[u]sed your coverage to lapse due to non-payment of premium. Please note that at this time,

based on your payment history you have paid for VADIP coverage through November 30th,

2019.”).)

On July 28, 2020, Berkery appealed again (see id. at p. 39), and reiterated his threat to

take legal action against MetLife if the issue was not resolved (see id.). A few months later, on

October 15, 2020, MetLife reiterated its position and sent a follow-up letter to Berkery regarding

the $1,200 reimbursement:

A review of the above file disclosed an overpayment in the amount of $1,200 . . . .

This letter contains instructions for returning this overpayment to MetLife.

This overpayment was the result of benefits being issued to you or on your behalf

to your dentist for services, which were rendered when your dental coverage was

not in effect. Since any fee billed for services rendered when coverage is not in

effect would be your financial responsibility, we are seeking reimbursement of

this overpayment from you.

(Id. at p. 43.)

On January 4, 2021, Berkery commenced this action by filing an application for leave to

proceed in forma pauperis (the “IFP application”) and his complaint. (See generally id.) In his

complaint, Berkery asserts five state law causes of action—breach of contract, common law

fraud, bad faith, and violations of the UTPCPL and UIPA—and seeks “actual damages in the

amount of $1,200.00 for the work VADIP approved and Dr. Valdes duly performed in reliance

on that approval” and “[p]unitive damages in excess of $75,000.” (Doc. No. 2 at pp. 1–18.)

II. IFP Application

Pursuant to 28 U.S.C. § 1915(a), federal courts may authorize the commencement of a

civil action, “without prepayment of fees or security,” by a plaintiff “who submits an affidavit

that includes a statement of all the assets [he] possesses,” showing that he is unable to pay the

costs of the lawsuit. 28 U.S.C. § 1915(a)(1); see also Chain v. Gross, Civil Action No. 18-4610,

2018 WL 5631642, at *1 (E.D. Pa. Oct. 31, 2018) (Ҥ 1915(a) allows a litigant to commence a

civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit

stating, among other things, that he is unable to pay the costs of the lawsuit.” (quotation marks

and citations omitted)). If, upon “review [of] the affiant’s financial statement,” the court is

“convinced that [the plaintiff] is unable to pay the court costs and filing fees, the court will grant

leave to proceed in forma pauperis.” Chain v. Gross, 2018 WL 5631642, at *2 (quotation marks

and citation omitted).

Here, after reviewing Berkery’s IFP application (see Doc. No. 1), it appears that he is

unable to pay the costs of bringing this lawsuit. Therefore, we will grant him leave to proceed in

forma pauperis.

III. Legal Standard: § 1915 Screening and Sua Sponte Review for Subject Matter

Jurisdiction

Because we have granted Berkery leave to proceed in forma pauperis, we are statutorily

mandated by 28 U.S.C. § 1915 to conduct a preliminary review (i.e., screening) of this action.

See, e.g., Feingold v. Brooks, 791 F. App’x 325, 325–26 (3d Cir. 2020) (affirming the court’s

decision to sua sponte dismiss a time-barred claim when conducting “the screening process

mandated by 28 U.S.C. § 1915 for litigants proceeding in forma pauperis”); Smith v. Shop Rite,

Civil Action No. 3:17-cv-0907, 2018 WL 2424136, at *2 (M.D. Pa. May 9, 2018) (“This Court

has a statutory obligation to conduct a preliminary review of pro se complaints brought by

litigants given leave to proceed in forma pauperis.”). Accordingly, we must review Berkery’s

complaint and dismiss his lawsuit if the action is frivolous or malicious; the complaint fails to

state a claim on which relief may be granted; or the action seeks money damages from an

immune defendant. 28 U.S.C. § 1915(e)(2); Chain, 2018 WL 5631642, at *2 (“Because the

court has granted [the plaintiff] leave to proceed in forma pauperis, the court must engage in the

second part of the two-part analysis and examine whether the complaint is frivolous, malicious,

fails to state a claim upon which relief may be granted, or asserts a claim against a defendant

immune from monetary relief.”); Passarella v. Citizen’s Bank, Civil Action No. 17-4349, 2018

WL 1251739, at *2 (E.D. Pa. Mar. 12, 2018) (same); see also Berkery v. Gudknecht, 763 F.

App’x 288, 288 (3d Cir. 2019) (“Section 1915(e)(2) provides that a district court ‘shall dismiss

the case at any time if the court determines that’ the case ‘fails to state a claim on which relief

may be granted.’”).

In evaluating whether to dismiss the plaintiff’s complaint for failure to state a claim under

§ 1915(e), we apply the same standard used for motions to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). Muchler v. Greenwald, 624 F. App’x 794, 797 (3d Cir. 2015); see also

White v. Barbe, 767 F. App’x 332, 334 (3d Cir. 2019). Therefore, we must determine whether

the complaint 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) (quotation marks omitted).

Although we must accept as true the allegations in the complaint, we are not “compelled to

accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation.” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (quotation marks

omitted). In other words, a “presumption of truth attaches only to those allegations for which

there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President

of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (quotation marks and citation omitted).

“Conclusory assertions of fact and legal conclusions are not entitled to the same presumption.”

Id. “While a plaintiff’s factual allegations must be enough to raise a right to relief above a

speculative level, complaints filed pro se must be liberally construed.” Muchler, 624 F. App’x at

797 (quotation marks and citations omitted)); see also Smith, 2018 WL 2424136, at *2 (noting

that although “[a] complaint by a pro se litigant is to be liberally construed,” “pro se litigants still

must allege sufficient facts in their complaint to support a claim” (quotation marks and citations

omitted)).

Courts also have the authority to evaluate subject matter jurisdiction sua sponte during

this review. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks

subject matter jurisdiction, the court must dismiss the action.”); see also Mowery v. Wetzel, Case

No. 1:19-cv-44, 2019 WL 2931672, at *1 (W.D. Pa. June 11, 2019) (“Among other things,

[§ 1915(e)] requires the Court to dismiss any action in which subject matter jurisdiction is

lacking and/or the plaintiff has failed to state a claim upon which relief may be granted.”);

Muchler, 624 F. App’x at 797 (affirming district court’s dismissal of the pro se complaint under

§ 1915(e) and explaining that the “[d]istrict court properly concluded that [the plaintiff] failed to

state a claim upon which relief could be granted because neither the complaint nor the amended

complaint asserted a claim over which the District Court had jurisdiction”). Plaintiffs who

initiate an action in federal court, such as Berkery, bear the burden of establishing federal

jurisdiction. See, e.g., Chain, 2018 WL 5631642, at *3.

IV. Discussion

“Federal courts are courts of limited jurisdiction and may only assert jurisdiction over

certain matters, such as where there is diversity of citizenship between the parties or where a

question is presented under federal law.” Gray v. Peruto, 481 F. App’x 716, 717 (3d Cir. 2012).

Berkery asserts that we have subject matter jurisdiction under 28 U.S.C. § 1331 because his case

arises under federal law and that diversity subject matter jurisdiction exists under 28 U.S.C.

§ 1332(a)(1). (Doc. No. 2 at ¶¶ 5–6.) But Berkery is mistaken: there is no basis for jurisdiction

in this matter.

Under § 1331, federal district courts have original jurisdiction over all civil actions

arising under the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331; see

also Muchler, 624 F. App’x at 797. Berkery’s claims, however, all arise under state law, not

federal law. (See Doc. No. 2 at pp. 1–18 (listing the causes of action as breach of contract and

common law fraud (which are two state common law claims), as well as violations of three

Pennsylvania statutes, including violations of the bad faith statute and violations of the UTPCPL

and UIPA).)

As a result, the only independent basis for jurisdiction over Berkery’s state law claims is

28 U.S.C. § 1332(a). See, e.g., Muchler, 624 F. App’x at 798 (“Having determined that [the

plaintiff] failed to allege a federal claim and was asserting a state law breach of contract claim

against the County Defendants, the District Court could only have exercised jurisdiction over this

claim if diversity jurisdiction was properly plead.”); Paris v. Lamas, Civil Action No. 20-CV-

3700, 2020 WL 6083427, at *3 (E.D. Pa. Oct. 15, 2020). Under 28 U.S.C. § 1332(a), a federal

district court has original jurisdiction over a civil action between citizens of different states

where “the matter in controversy exceeds the sum or value of $75,000.” 28 U.S.C. § 1332(a);

see also Muchler, 624 F. App’x at 798. Complete diversity requires that “the controversy be

between citizens of different states.” Gray, 481 F. App’x at 717. Here, that requirement is

satisfied: Berkery alleges that he is a Pennsylvania citizen, that MetLife is a Delaware

corporation with headquarters in New York, and that VADIP has a principal place of business in

Texas. (See Doc. No. 2 at ¶¶ 1–3.)

Our inquiry, therefore, is focused on whether Berkery has satisfied the amount in

controversy requirement. “The sum claimed by the plaintiff controls if the claim is apparently

made in good faith[,] but it must appear to a legal certainty that the claim is really for less than

the jurisdictional amount to justify dismissal.” Muchler, 624 F. App’x at 798 (quotation marks

and citations omitted, alterations adopted). To determine whether the $75,000 threshold has

been reached, we “must examine what damages are recoverable under state law.” Id. To the

extent “both actual and punitive damages are recoverable, punitive damages are properly

considered in determining whether the jurisdictional amount has been satisfied.” Id.

Punitive damages are available under Pennsylvania’s bad faith statute, as well as for

common law fraud claims. See Klein v. Weidner, 729 F.3d 280, 296 (3d Cir. 2013) (“It is well

established that, under Pennsylvania law, punitive damages may be awarded in cases of common

law fraud.”); 42 Pa. Cons. Stat. Ann. § 8371. In addition, “although 28 U.S.C. § 1332 excludes

‘interests and costs’ from the amount in controversy, attorney’s fees are included where they are

available to successful plaintiffs under the statutory cause of action, as they are under 41 Pa.

Cons. Stat. Ann. § 8371[,]” Pennsylvania’s bad faith statute. Alberty v. Nationwide Mut. Ins.

Co., Civil Action No. 05-1319, 2005 WL 8176235, at *3 (W.D. Pa. Oct. 25, 2005); see also

Morris v. Bankers Life & Cas. Co., Civil Action No. 11-7675, 2012 WL 602418, at *2 (E.D. Pa.

Feb. 24, 2012).

Here, Berkery seeks actual damages in the amount of $1,200 for the crown work his

dentist performed and “punitive damages in excess of $75,000.” (Doc. No. 2 at pp. 17–18.) In

other words, Berkery seeks $73,800 in punitive damages, which results in a drastic ratio between

the punitive and compensatory damages (approximately 61 to 1). But, as the Supreme Court has

explained, “in practice, few awards exceeding a single-digit ratio between punitive and

compensatory damages will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408, 425 (2003) (“Single digit multipliers are more likely to comport with due

process.”); see also Kalick, 372 F. App’x at 322. Here, a punitive damages award of even nine

times the amount Berkery seeks in compensatory damages ($1,200) is a mere $10,800—far

below the jurisdictional amount.

The Third Circuit’s Kalick v. Northwest Airlines Corporation decision is instructive. 372

F. App’x 317 (3d Cir. 2010). There, the plaintiff brought claims against the defendant-airline for

breach of contract and fraud. Id. at 321. “On the face of the complaint,” the plaintiff’s damages

arose from his unplanned stay in a Dallas airport for one night and his arrival in Philadelphia one

day late. Id. The plaintiff demanded $163,000 in damages—his compensatory damages

amounted to $1,433.59 and his punitive damages accounted for the remainder, $161,600. Id.

When evaluating whether the plaintiff had met the amount in controversy requirement, the Third

Circuit held that “[e]ven a liberal construction of [the plaintiff’s] pleadings” could not “lead to

the conclusion that he [was] entitled to recover the necessary amount of damages.” Id. In

explaining the reasons for its conclusion, the Third Circuit emphasized that “[s]uch a drastic ratio

between the punitive and compensatory damages (112 to 1) would almost certainly violate the

constitution.” Id. at 322. The Third Circuit added, “Even assuming that [the plaintiff] could

recover twice the amount of compensatory damages he requests, or approximately $2900, his

maximum punitive damages would leave him well short of the amount in controversy

requirement.” Id. As such, the Third Circuit affirmed the district court’s holding that it lacked

subject matter jurisdiction over the plaintiff’s state law claims. Id.

We are persuaded by the court’s reasoning in Kalick and find it analogous to the case

presently before us. From the face of the complaint, Berkery’s damages arose from Defendants’

demand for reimbursement of $1,200 and their conclusion that they had overpaid his benefits

because his policy was not active at the time of his final dental appointment. As in Kalick, we

hold that even the most liberal interpretation of Berkery’s complaint cannot plausibly lead to the

conclusion that Berkery is entitled to recover $75,000 in damages, particularly $73,600 in

punitive damages.

V. Conclusion

For the foregoing reasons,2 we dismiss Berkery’s complaint under § 1915(e) for lack of

subject matter jurisdiction, with prejudice and without leave to amend.

2 Additionally, at least two of Berkerky’s claims clearly fail to state a claim as a matter of law from the

very face of the complaint.

First, as Berkery himself admits (see Doc. No. 2 at p. 15 ¶ 60), there is no private right of action under the

UIPA. See, e.g., Leach v. Nw. Mut. Ins. Co., 262 F. App’x 455, 459 (3d Cir. 2008) (“As the District

Court pointed out, there is no private right of action under the UIPA, which can only be enforced by the

state insurance commissioner.”); Weinberg v. Nationwide Cas. & Ins. Co., 949 F. Supp. 2d 588, 598 (E.D.

Pa. 2013) (“Courts within the Third Circuit and the Commonwealth of Pennsylvania continue to

“Generally before dismissing a complaint, the district court should grant to leave amend

unless the court determines that amendment would be futile.” Muchler, 624 F. App’x at 799

(affirming the district court’s dismissal with prejudice and finding that “[l]eave to amend would

have been futile in this circumstance because it is inconceivable that [the plaintiff] could allege

additional facts arising out of the remodeling work he allegedly performed that would bring his

claims within the original jurisdiction of the District Court”). Here, an amendment would be

futile because Berkery cannot possibly reach the $75,000 threshold when he only suffered

$1,200 in compensatory damages, even taking into account possible punitive damages.

Although we do not grant leave to amend in federal court, Berkery may refile his claims in state

court.

An appropriate order follows.

recognize that the UIPA does not provide plaintiffs with a private cause of action.” (collecting cases)).

Accordingly, dismissal is warranted as to Count Five, the UIPA claim.

Second, “[t]here is no right to recover under the UTPCPL for nonfeasance, which is the failure to perform

a contractual duty.” Leach, 262 F. App’x at 459. To that end, “[a]n insurer’s failure to pay benefits under

a policy constitutes simple nonfeasance and is not actionable under the UTPCPL.” Id. (affirming

dismissal of the plaintiff’s UTPCPL claim because he “argued only that Northwestern improperly denied

him disability benefits, which constitutes nonfeasance”). Here, the crux of Berkery’s claim is that

Defendants wrongly denied him $1,200 allegedly owed to him under his policy. (See generally Doc. No.

2.) Because this denial of policy benefits constitutes nonfeasance, see Leach, 262 F. App’x at 459,

Berkery fails to state a claim as a matter of law under the UTPCPL (Count Four).