# Gerald S. v. Moda Health

> District Court, D. Oregon · July 31, 2025

URL: https://www.frixlaw.com/law-library/cases/11130659

## Case

- **Court:** District Court, D. Oregon
- **Decided:** July 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11130659

## How later opinions describe it (automated extraction)

- finding on summary judgment that the residential treatment facility at issue, which specialized in eating disorders, was “residential care” under the plan and facts presented
- recognizing a motion to dismiss for lack of statutory standing under ERISA is “properly viewed” as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)
- noting the Ninth Circuit has “emphasized” that a § 1132(a)(1)(B

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

GERALD S. and V.S.,

Plaintiffs,
Case No. 3:24-cv-00426-YY
v.
FINDINGS AND
MODA HEALTH, RECOMMENDATIONS

Defendant.

YOU, Magistrate Judge.
FINDINGS
Plaintiff Gerald S. is the father of plaintiff V.S., and together they have filed suit against
Moda Health (“Moda”) alleging claims under the Employee Retirement Income Security Act
(“ERISA”), specifically 29 U.S.C. § 1132(a)(1)(B), to recover benefits due under their health
benefits plan, and 29 U.S.C. § 1132(a)(3), for a violation of the Mental Health and Addiction
Equity Act of 2008 (“Parity Act”), 29 U.S.C. § 1185a. Am. Compl., ECF 36. Defendant has filed
a motion to dismiss asserting: (1) both claims fail to state a claim for relief pursuant to Federal
Rule of Civil Procedure 12(b)(6); (2) plaintiffs’ Parity Act claim fails to join a necessary party
that cannot be feasibly joined pursuant to Rule 12(b)(7); and (3) lack of standing for prospective
remedies pursuant to Rule 12(b)(1). Mot. Dismiss 2, ECF 24. At the hearing on the motion, the
court described concerns it had regarding the sufficiency of plaintiffs’ first claim for relief under
29 U.S.C. § 1132(a)(1)(B) and allowed plaintiffs to file an Amended Complaint. See Am.
Compl., ECF 36. Defendant has filed a Supplemental Motion to Dismiss as to the amended
§ 1132(a)(1)(B) claim. Supp. Mot., ECF 38. Both motions to dismiss are now fully briefed. The
motions should be granted in part and denied in part for the reasons discussed below.
I. Motion to Dismiss for Failure to State a Claim

A. Rule 12(b)(6) Standard
To survive a motion to dismiss under Rule 12(b)(6), “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “The plausibility standard is not akin to a probability requirement, but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true
all factual allegations in the complaint and draw all reasonable inferences in favor of the

nonmoving party. Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938,
945 (9th Cir. 2014). The court is not required to accept as true “a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[I]f two
alternative explanations exist, ‘one advanced by defendant and the other advanced by plaintiff,
both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule
12(b)(6). Plaintiff's complaint may be dismissed only when defendant’s plausible alternative
explanation is so convincing that plaintiff’s explanation is implausible.’” Keith Mfg., Co. v.
Butterfield, No. 3:15-cv-2008-SI, 2016 WL 4134555, at *2 (D. Or. Aug. 2, 2016) (quoting
Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)).
B. Section 1132(a)(1)(B) Claim
Congress enacted ERISA to “‘protect. . . the interests of participants in employee benefit
plans and their beneficiaries’ by setting out substantive regulatory requirements for employee
benefits plans and to ‘provid[e] for appropriate remedies, sanctions, and ready access to the

Federal courts.’” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (alteration in original)
(quoting 29 U.S.C. § 1001(b)). ERISA “ensure[s] that employees will not be left empty-handed
once employers have guaranteed them certain benefits.” Wit v. United Behav. Health, 79 F.4th
1068, 1081 (9th Cir. 2023) (alteration in original) (quoting Lockheed Corp. v. Spink, 517 U.S.
882, 887 (1996)).
As a “comprehensive legislative scheme,” ERISA has an “integrated enforcement
mechanism” in 29 U.S.C. § 1132(a). Aetna Health, 542 U.S. at 208. Under § 1132(a)(1)(B), an
ERISA plan participant or beneficiary may bring a civil action to “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.” This provision “speaks of enforc[ing] the

terms of the plan not changing them,” and there is “nothing suggesting that the provision
authorizes a court to alter those terms.” CIGNA Corp. v. Amara, 563 U.S. 421, 436, (2011)
(alteration and emphasis in original) (internal quotation marks omitted); see also Wilson v. Cox,
No. 3:15-cv-00059-SI, 2015 WL 6123776, at *3 (D. Or. Oct. 16, 2015) (noting the Ninth Circuit
has “emphasized” that a § 1132(a)(1)(B) claim “can only be successful if recovering the benefits
is consistent with the terms of the plan”).
“To state a claim for denial of benefits under [§ 1132(a)(1)(B)], a plaintiff must plausibly
allege facts showing [the plaintiff] was owed benefits under the plan.” Smith v. Cigna Health &
Life Ins. Co., No. 3:20-cv-624-SI, 2020 WL 5834786, at *4 (D. Or. Sept. 30, 2020). “Thus, a
plaintiff must allege facts that establish the existence of an ERISA plan as well as the provisions
of the plan that entitle [the plaintiff] to benefits.” Id. (simplified).
Plaintiffs’ § 1132(a)(1)(B) claim stems from treatment that V.S. received at Evoke at
Entrada (“Evoke”) and Solacium Sunrise (“Sunrise”), which plaintiffs describe are programs that

provide “sub-acute inpatient care” for “adolescents with mental health, behavioral, and/or
substance abuse problems.” Am. Compl. ¶¶ 3–4, ECF 36. Plaintiffs claim that defendant “failed
to provide coverage for V.S.’s treatment in violation of the express terms of the Plan, which
promise benefits to employees and their dependents for medically necessary treatment of mental
health and substance use disorders.” Id. ¶ 59. Defendant does not dispute that plaintiffs were
participants in an ERISA plan that provided health insurance benefits during the relevant period.
However, defendant makes other arguments in support of dismissal, which are addressed in turn
below.
1. Evoke
According to the Amended Complaint, Evoke provides “sub-acute inpatient care to

adolescents with mental health, behavioral, and/or substance abuse problems.” Am. Compl. ¶ 4,
ECF 36 (emphasis added). Plaintiffs allege defendant denied coverage for treatment at Evoke
because they were required to obtain preauthorization for “out-of-network residential chemical
dependency treatment” and failed to do so. Id. ¶ 24 (emphasis added). Plaintiffs claim that no
preauthorization was required because Evoke “was not actually a residential program but was
instead an outdoor behavioral health program.” Id. ¶ 25 (emphasis added). Plaintiffs contend
that the plan directed participants to defendant’s website for a list of services that require
preauthorization, and outdoor behavioral health programs were not on that list. Id. ¶¶ 27, 67–68.
Therefore, plaintiffs claim, defendant erred in requiring preauthorization for V.S.’s treatment at
Evoke. Id. ¶ 68. Defendant argues that because inpatient care for substance abuse is residential
chemical dependency treatment, it validly denied coverage under the plan. Supp. Mot. Dismiss 9,
ECF 38.
Plaintiffs’ claim turns on the definition of “residential chemical dependency treatment.”

For defendant’s argument to hold, inpatient care for substance abuse or outdoor behavioral health
programs must fall within the ambit of the plan’s definition of residential chemical dependency
treatment. “Courts may consider plan documents for a Rule 12 motion when a plaintiff’s ERISA
claim is based on the plan’s terms or the plan is sufficiently referenced.” Smith, 2020 WL
5834786 at *3. Here, neither party has filed a copy of the plan for incorporation by reference.
Moreover, at the pleading stage, the court must accept all of plaintiffs’ factual allegations as true,
including the allegation that Evoke was not a residential program under the plan, which they
claim is evidenced by the fact that defendant’s website did not state that outdoor behavioral
health programs required preauthorization. This is the type of factual issue that is more
appropriate for summary judgment. Compare Harlick v. Blue Shield of California, 686 F.3d 699,

709 (9th Cir. 2012) (finding on summary judgment that the residential treatment facility at issue,
which specialized in eating disorders, was “residential care” under the plan and facts presented),
with Todd R. v. Premera Blue Cross Blue Shield of Alaska, No. C17-1041JLR, 2019 WL
1923034, at *4 (W.D. Wash. Apr. 30, 2019) (describing inpatient and residential care as discrete
categories under the plan at issue, but also noting there was overlap that created ambiguity,
which must be construed against the defendant).1

1 In its motion to dismiss, defendant did not contend that V.S.’s treatment at Evoke was not
medically necessary. Therefore, the court does not consider that issue.
2. Sunrise
Defendant attacks plaintiffs’ § 1132(a)(1)(B) claim for treatment at Sunrise on two fronts.
First, defendant asserts that V.S.’s “in-patient treatment was not medically necessary.” Supp.
Mot. 12, ECF 38. Second, defendant asserts that the plan’s definition of residential treatment

expressly excludes any program that provides less than 4 hours per day of treatment and V.S.’s
treatment at Sunrise was “only for 2 hours per day.” Id.
After leaving Evoke, V.S. received treatment at Sunrise. Am. Compl. ¶ 3, ECF 36.
Defendant denied payment for V.S.’s treatment at Sunrise because defendant “determined that
treatment was not medically necessary.” Id. ¶ 34. Plaintiffs appealed the initial decision, and
defendant upheld its denial of payment. Id. ¶ 35, 42. Defendant explained that V.S. “did not have
a psychiatric or medical condition that required 24-hour specialized care with physician
oversight” and she “could have been safely and effectively treated at a lower level of care.” Id.
¶ 42. Therefore, defendant concluded that “psychiatric residential treatment” was not medically
necessary. Id. Defendant also noted that Sunrise did “not meet the residential treatment program

requirements including 8h/day, 5d/week of structured mental health treatment; weekly
psychiatric physician oversight, twice per week individual therapy, and once weekly family
therapy.” Id. Plaintiffs requested review by an external agency. Id. ¶ 49. The external review
agency likewise found that residential treatment was not medically necessary and that plaintiffs
failed to demonstrate V.S. could not have been treated effectively with a lower level of care,
explaining that at the time V.S. was admitted to Sunrise, there was no evidence of “imminent
risk of harm to self or others,” she evidenced no “suicidal ideation or history of suicide
attempts,” she identified no “self-harm over six months prior,” she evidenced “no current
thought of harm to self or other,” and she had not used substances since she was at Evoke. Id.
¶ 55.
Plaintiffs allege that defendant “ignored the evidence that the treatment was medically
necessary,” id. ¶ 70, and claim that medical records “show issues such as a desire to self-harm,

angry outbursts, depressed and irritable moods, food restrictions, urges to resume substance
abuse, and feelings of worthlessness.” Id. ¶ 47. At this stage, all factual allegations must be
resolved in plaintiffs’ favor. Accepting plaintiffs’ allegations as true, it is plausible that
residential treatment was medically necessary for V.S.’s condition. Thus, dismissing plaintiffs’
claim at this stage would be inappropriate.
Defendant argues that V.S.’s treatment at Sunrise nevertheless was not covered by the
plan because plaintiffs allege that the definition of residential treatment care excludes “any
program that provides less than 4 hours per day of direct treatment services.” Id. ¶ 37, and V.S.
only received two hours of treatment per day at Sunrise. Id. ¶ 55; Supp. Mot. 12, ECF 38.
However, plaintiffs also allege that Sunrise was “a ‘provider’ as defined by the insurance plan

booklet.” Am. Compl. ¶ 38, ECF 36. Plaintiffs claim that because “mental health ‘providers’ are
covered under the terms of the Plan, this means medically necessary treatment [at] Sunrise
should have been covered either way.” Supp. Resp. 6, ECF 39.
On a motion to dismiss, the court must accept well-pleaded allegations as true and draw
all reasonable inferences in favor of plaintiffs. Applying that standard, plaintiffs’ § 1132(a)(1)(B)
claim for V.S.’s treatment at Sunrise withstands defendant’s motion. Plaintiffs allege that the
plan “promise[s] benefits to employees and their dependents for medically necessary treatment
of mental health and substance use disorders.” Am. Compl. ¶ 59, ECF 36. As noted, plaintiffs
allege that V.S.’s medical records at the time she was admitted to Sunrise indicated that
residential treatment was medically necessary. It is reasonable to infer that V.S.’s medical
records indicating issues such as “a desire to self-harm” and “urges to resume substance abuse”
were enough to justify treatment with a mental health provider. Plaintiffs support their assertion
that Sunrise is a mental health provider under the terms of the plan with factual allegations:

plaintiffs allege that Sunrise provides “sub-acute inpatient care to adolescents with mental health,
behavioral, and/or substance abuse problems,” id. ¶ 4, and was “duly licensed by the State of
Utah to provide residential care” as well as “fully accredited by the Joint Commission.” Id. ¶ 38.
Together, these allegations give rise to a reasonable inference that V.S. required mental health
treatment and that Sunrise falls within the definition of mental health provider under the terms of
the plan. Because the plan provides for medically necessary treatment of mental health disorders,
plaintiffs have plausibly alleged that they were denied benefits to which they were entitled.
Finally, defendant attempts to cast plaintiffs’ allegations as a claim under § 1132(a)(3)
that “is not actionable under § 1132(a)(1)(B)” because it would be a duplicative cause of action.
Mot. Dismiss 5, ECF 24. Plaintiffs, however, “may bring an § 1132(a)(3) claim as an alternative

theory of liability to a § 1132(a)(1)(B) claim.” Smith v. Cigna Health & Life Ins. Co., No. 3:20-
cv-624-SI, 2021 WL 1895234, at *2 (D. Or. May 11, 2021); see LD v. United Behav. Health,
508 F. Supp. 3d 583, 597 (N.D. Cal. 2020) (“A plaintiff can pursue remedies under both Sections
1132(a)(1)(B) and 1132(a)(3) in the alternative based on the same allegations.”). Claims under
both provisions may proceed simultaneously provided there is no double recovery. Sargent v. S.
California Edison 401(k) Sav. Plan, No. 20-cv-1296-MMA (RBB), 2021 WL 347689, at *8
(S.D. Cal. Feb. 2, 2021) (citing Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1229 (9th Cir.
2020), and Moyle v. Liberty Mut. Ret. Ben. Plan, 823 F.3d 948, 961 (9th Cir. 2016)).
C. Section 1132(a)(3) Claim
In their second claim for relief, plaintiffs allege a violation of 29 U.S.C. § 1132(a)(3),
asserting that the Parity Act “requires ERISA plans to provide no less generous coverage for
treatment of mental health and substance use disorders than they provide for treatment of

medical/surgical disorders.” Am. Compl. ¶ 78, ECF 36. The Parity Act is an ERISA provision,
codified at 29 U.S.C. § 1185a. Under the Parity Act, a group health plan that offers both medical
and surgical benefits and mental health or substance use disorder benefits may not apply any
treatment limitations to mental health or substance use disorder benefits that are “more restrictive
than the predominant treatment limitations applied to substantially all medical and surgical
benefits covered by the plan (or coverage)” and must ensure “there are no separate treatment
limitations that are applicable only with respect to mental health or substance use disorder
benefits.” 29 U.S.C. § 1185a(3)(A). The Parity Act also precludes health plans from imposing
stricter financial requirements on mental health or substances abuse disorder benefits. 28 U.S.C.
§ 1185a(3)(A)(i); see Ryan S. v. UnitedHealth Grp., Inc., 98 F.4th 965, 969 (9th Cir. 2024)

(discussing Parity Act); Danny P. v. Cath. Health Initiatives, 891 F.3d 1155, 1157 (9th Cir.
2018) (same).
Federal regulations set forth two types of treatment limitations that would violate the
Parity Act. First, there are quantitative treatment limitations, which are “expressed numerically,”
29 C.F.R. § 2590.712(a)(1)(2), and include “annual, episode, and lifetime day and visit limits.”
29 C.F.R. § 2590.712(c)(1)(ii). Second, there are nonquantitative treatment limitations, which
include, among other limitations, “[r]estrictions based on geographic location, facility type,
provider specialty, and other criteria that limit the scope or duration of benefits for services
provided under the plan or coverage.” 29 C.F.R. § 2590.712(c)(4))(ii)(H).
To “succeed on a claim under the Parity Act, a plaintiff must show that an ERISA plan
that offers both medical/surgical benefits and [mental health/substance use disorder] benefits
imposed a ‘more restrictive limitation on [mental health/substance use disorder] treatment than
limitations on treatment for medical and surgical issues.’” Ryan S., 98 F.4th at 971 (quoting

Stone v. UnitedHealthcare Ins. Co., 979 F.3d 770, 774 (9th Cir. 2020)). There are three ways that
plaintiffs can properly plead this claim: “Plaintiffs can allege that an ERISA plan contains an
exclusion that is discriminatory on its face, that the plan contains a facially neutral term that is
discriminatorily applied to [mental health/substance use disorder] treatment, or that the plan
administrator applies an improper internal process that results in the exclusion of some [mental
health/substance use disorder] treatment.” Id. (emphasis in original). “Because violations of the
Parity Act can take different forms, an evaluation of the plausibility of a complaint must reflect
the specific violation alleged.” Id. at 972. The “pertinent inquiry” is whether a defendant’s
refusal to cover the plaintiff’s treatment is based on an exclusion that “applies equally to medical
or surgical benefits and mental health or substance use disorder benefits.” A.Z. by & through E.Z.

v. Regence Blueshield, 333 F. Supp. 3d 1069, 1078 (W.D. Wash. 2018).
Here, plaintiffs contend that defendant committed Parity Act violations with respect to
V.S.’s treatment at both Sunrise and Evoke but cite to different reasons for each.
1. Reasons for Denial
a. Sunrise
Plaintiffs allege that defendant denied treatment at Sunrise because it did not meet
residential treatment program requirements, “including 8h/day, 5d/week of structured mental
health treatment; weekly psychiatric physician oversight, twice per week individual therapy, and
once weekly family therapy.” Am. Compl. ¶ 42, ECF 36. Plaintiffs claim that the plan defines
residential treatment as “a state-licensed program or facility providing organized full-day or part-
day program of treatment,” id. ¶ 37, and that Sunrise meets this definition because it was “duly
licensed by the State of Utah to provide residential care.” Id. ¶ 38. Accordingly, plaintiffs claim
that defendants imposed an additional programming requirement for Sunrise based on “facility

type” in violation of the Parity Act. Id. ¶ 39–40.
Plaintiffs also allege defendant applied a different standard for assessing V.S.’s mental
health treatment coverage. Plaintiffs claim that benefits for “intermediate level treatment of
medical and surgical conditions” are based on “generally accepted standards of medical
practice.” Id. ¶ 83. However, for V.S.’s mental health treatment, defendant “deviate[d] from
generally accepted standards of medical practice,” id. ¶ 84, by not “tak[ing] into consideration
safety issues and considerations of preventing decline or relapse.” Id. ¶ 88.
b. Evoke
Defendant’s basis for denying payment for V.S.’s treatment at Evoke was that “out-of-
network residential chemical dependency treatment” required prior authorization that plaintiffs

had not obtained. Id. ¶ 24. Plaintiffs allege that Evoke is “not a residential program but was
instead an outdoor behavioral health program,” id. ¶ 25, and that defendant’s website did not list
outdoor behavioral health programs as a service that required prior authorization. Id. ¶ 27.
Plaintiffs also allege that payment for treatment at Evoke was denied, in part, because
defendant failed to recognize a revenue code for outdoor behavioral health program. Id. ¶ 28. As
a result, plaintiffs were forced to submit their coverage request under a different code, which
then led to the denial of benefits. Id. Plaintiffs allege that the “National Uniform Billing
Committee, the organization responsible for developing and issuing revenue codes, has assigned
wilderness programs their own separate revenue code.” Id. ¶ 89. According to plaintiff, this
categorical exclusion of a code for wilderness programs amounts to an impermissible restriction
under the Parity Act. Id. ¶ 90–91.
2. Analysis
At this stage of the proceedings, assuming plaintiffs’ allegations are true and drawing all

reasonable inferences in their favor, plaintiffs’ Parity Act claim is sufficient to withstand
defendant’s motion to dismiss. Plaintiffs allege that, whereas defendant pays claims based on
generally accepted standards of medical practice for intermediate medical and surgical
conditions, id. ¶ 83, defendant deviated from those standards with respect to Sunrise. Id. ¶¶ 87–
88. Thus, plaintiffs have adequately stated a claim for an as-applied Parity Act violation. See
A.H. v. Anthem Blue Cross, 2023 WL 3819367, at *3 (N.D. Cal. June 5, 2023) (finding similar
allegations—that defendant provided benefits based on generally accepted standards of medical
practice; defendant used more stringent medical criteria for intermediate level mental health
treatment; and comparable medical and surgical treatments consisted of sub-acute inpatient
treatment settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation

facilities—were sufficient to allege a Parity Act claim).
Plaintiffs have likewise done enough to plead an as-applied Parity Act claim based on
defendant’s imposition of additional programming requirements for Sunrise to classify as a
residential program. Plaintiffs allege that the plan defines residential program as “a state-licensed
program or facility providing an organized full-day or part-day program of treatment.” Am.
Compl. ¶ 37, ECF 36 (emphasis added). Plaintiffs allege that although Sunrise is licensed by the
state of Utah and therefore a residential program under the plan, id. ¶ 38, defendant denied
coverage because Sunrise did not offer sufficient programming. Id. ¶ 42. With these allegations,
plaintiffs have gone beyond a conclusory statement that V.S.’s treatment at Sunrise was treated
more restrictively comparable medical or surgical benefits and “describe[d] ways in which
Defendant applies more restrictive limitations.” A.H., 2023 WL 3819367 at *3.
Plaintiffs’ claim that defendant violated the Parity Act by categorically excluding Evoke,
a medically necessary outdoor behavioral program, also survives dismissal. In A.Z. by & through

E.Z. v. Regence Blueshield, the plaintiff alleged that the defendant “excludes coverage of
outdoor/wilderness behavioral healthcare programs for mental illnesses, even though it covers
medical treatment provided in other types of intermediate residential programs, such as skilled
nursing care.” 333 F. Supp. 3d at 1078. The plaintiff further alleged that “blanket exclusion” was
a “nonquantitative treatment limitation” and was “not in parity with the treatment limitations it
imposes on comparable intermediate medical/surgical services, such as skilled nursing facilities
and rehabilitation hospitals, which are expressly covered.” Id.
The court observed that categorical denial of wilderness program benefits, “independent
of the terms of the Plan,” can be a restriction that violates the Parity Act. Id. at 1082; see also
Gallagher v. Empire HealthChoice Assurance, Inc., 339 F. Supp. 3d 248, 258 (S.D.N.Y. 2018)

(adopting the reasoning in A.Z. and holding that at the motion to dismiss stage, the issue is not
whether benefits for wilderness therapy are “available for medical/surgical patients, but rather
whether the Plan has chosen to provide benefits for skilled nursing facilities and rehabilitation
centers for medical/surgical patients, but chosen to deny benefits to those with mental health
conditions who seek coverage for a residential treatment center offering wilderness therapy”).
The court further held that even though “[o]n its face, the Plan does not violate the Parity Act
because its terms are neutral,” a categorical exclusion “in practice” is “a form of ‘process’ falling
within 29 C.F.R. § 2590.712(c)(4)(i) that qualifies as a discriminatory limitation.” Id. At the
pleading stage, the plaintiff must properly identify the “allegedly violative limitation,” but need
not “specify[] the processes and factors used by a defendant to apply that exclusion.” Id. Instead,
the case “should proceed to the discovery phase” so that the plaintiff is “permitted to test the
processes [the defendant] employ[s]” and whether the “disparate application . . . in fact exists.”
Id.

Here, plaintiffs have likewise pleaded enough to overcome dismissal. Plaintiffs allege
that defendant failed to offer a revenue code for outdoor wilderness programs, which can be
reasonably inferred as a categorical denial in practice of medically necessary services for such
treatment. Plaintiffs need not to allege further details regarding defendant’s decision-making
with respect to excluding such a revenue code because this “would likely create a serious
obstacle to an otherwise meritorious Parity Act claim.” Id. (internal quotation mark omitted).
Defendant argues that plaintiffs’ Parity Act claims fail to plausibly allege a disparity in
coverage between mental health benefits and medical or surgical benefits. Mot. Dismiss 6, ECF
24. Specifically, defendant contends that plaintiffs have not identified a “comparable analogous
medical or surgical care that Moda treats differently than the mental health treatment at issue

here.” Id. Defendant’s argument is unavailing. The Ninth Circuit has held that at this stage, “a
plaintiff need not identify an analogous category of claims with precision.” Ryan S., 98 F.4th at
972.
While a plaintiff alleging a Parity Act violation must give reason to
believe that some analogous category of claims is treated differently,
the plaintiff can define that analogous category quite broadly. The
statute and its implementing regulations require only a comparison
between the MH/SUD treatment at issue and other treatment within
the same “classification.”

Id. The court cited to the six classifications enumerated in the regulations and noted that “[a]ny
other medical/surgical treatment within that classification can be a sufficient comparator.” Id.;
see 29 C.F.R. § 2590.712(c)(2)(ii)(A) (listing the classifications as inpatient, in-network;
inpatient, out-of-network; outpatient, in-network; outpatient, out-of-network; emergency care;
and prescription drugs).
Here, plaintiffs have identified analogous “medical/surgical treatment” as “sub-acute
inpatient treatment settings such as skilled nursing facilities, inpatient hospice care, and

rehabilitation facilities.” Am. Compl. ¶ 82, ECF 36. Plaintiffs need not plead more at this stage.
See Ryan, 98 F.4th at 972; Patrick S. v. United Behav. Health, 516 F. Supp. 3d 1303, 1308–09
(D. Utah 2021) (rejecting defendants’ contention that identifying “subacute inpatient care such as
skilled nursing facilities, inpatient hospice care, and rehabilitation facilities” as analogous to
“wilderness treatment programs” and “mental health residential treatment centers” was “too
general and inaccurate” at the motion to dismiss stage and noting that the “Court has consistently
determined” that such a comparison was sufficient for stating a Parity Act claim); K.K. v.
Premera Blue Cross, No. C21-1611-JCC, 2022 WL 1719134, at *2–3 (W.D. Wash. May 27,
2022) (citing Patrick S. and noting that “[m]any courts” have likewise consistently held that
analogizing mental health residential treatment centers to inpatient skilled nursing facilities,

inpatient rehabilitation facilities, and inpatient hospice facilities was sufficient to state a Parity
Act claim).
Defendant relies, in part, on Charles W. v. United Behav. Health, No. 2:18-cv-829-TC,
2019 WL 6895331 (D. Utah Dec. 18, 2019), to support its contention that plaintiffs’ comparison
is too vague. Mot. 8, ECF 24. There, the court found the plaintiffs’ comparison of a “licensed
and accredited therapeutic boarding school that provides residential treatment for girls” to “sub-
acute inpatient treatment settings such as skilled nursing facilities, inpatient hospice care, and
rehabilitation facilities” was insufficient to allege a Parity Act claim. Charles W., WL 6895331
at *3–5. The court observed that the plaintiff did “not explain how the treatment in these
facilities is analogous to the treatment [the plaintiff] received.” Id. at *5.
Notably, however, the court acknowledged “there is no clear law on how to state a claim
for a Parity Act violation.” Id. at *4. More recent decisions, including those cited above, have not

followed Charles W. In fact, Patrick S., which was decided in the same district after Charles W.,
holds that “analogizing mental health residential treatment centers and wilderness treatment
programs to medical/surgical inpatient hospice and rehabilitation facilities is sufficient to state a
Parity Act claim,” 516 F. Supp. 3d at 1309, and cites to numerous decisions in that district that
reached the same conclusion. Id. at 1309 n.38 (collecting cases). District courts in the Ninth
Circuit have held similarly. See, e.g., Scott D. v. Anthem Blue Cross Life & Health Ins. Co., No.
23-cv-05664-RS, 2024 WL 1123210, at *3–4 (N.D. Cal. Mar. 14, 2024) (finding the plaintiff’s
Parity Act claim sufficient where he identified “sub-acute inpatient treatment setting such as
skilled nursing facilities, rehabilitation facilities and inpatient hospice care” as analogous
medical facilities); A.H., 2023 WL 3819367 at *3 (finding the plaintiff’s allegations sufficient for

a Parity Act claim where she identified “sub-acute inpatient treatment settings such as skilled
nursing facilities, inpatient hospice care, and rehabilitation facilities” as comparable benefits for
medical and surgical treatment).
In sum, the Ninth Circuit has made clear that a plaintiff can define an “analogous
category quite broadly,” Ryan S., 98 F.4th at 972, and the weight of authority supports finding
that plaintiffs have sufficiently pleaded their Parity Act claims by describing “sub-acute inpatient
treatment settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
facilities” as a comparable “medical/surgical treatment.”2 Am. Compl. ¶ 82, ECF 36.
D. Statutory Standing for Restitution under § 1132(a)(3)
Plaintiffs seek “[a]ppropriate equitable relief pursuant to 29 U.S.C. § 1132(a)(3) as

outlined in [their] Second Cause of Action,” including an “order based on the equitable remedy
of surcharge requiring the Defendant to provide payment to the Plaintiffs as make-whole relief
for their loss,” Am. Compl. ¶ 92(f), ECF 36, and an “order providing restitution . . . for their loss
arising out of the Defendant’s violation of [the Parity Act].” Id. ¶ 92(h). Section 1132(a)(3)(B)
allows a civil action to be brought by a participant, beneficiary, or fiduciary “to obtain other
appropriate equitable relief” to “redress violations” or “enforce any provisions of this subsection
or the terms of the plan.” Defendant argues that plaintiffs “lack standing” because their “claim
for ‘make-whole monetary relief’ seeks money damages, which fall[s] outside of the remedy
provisions of Section 1132(a)(3).” Mot. Dismiss 14, ECF 24. This issue of whether plaintiff are
seeking “appropriate equitable relief” under section 1132(a)(3) is characterized as statutory

standing, which is addressed through a Rule 12(b)(6) motion. See Paulsen v. CNF Inc., 559 F.3d
1061, 1075 (9th Cir. 2009) (differentiating between Article III standing and “statutory standing”
in analyzing whether plaintiff sought “appropriate equitable relief” under section 1132(a)(3));

2 Defendant also cites to A.H. by & through G.H. v. Microsoft Corp. Welfare Plan, No. C17-
1889-JCC, 2018 WL 2684387 (W.D. Wash. June 5, 2018), for the proposition that plaintiffs’
allegations with respect to medical or surgical analogues are insufficient. Mot. 8, ECF 24. The
court did not address whether plaintiff had sufficiently pled an analogous medical or surgical
benefit. A.H. by & through G.H., 2018 WL 2684387 at *7 n.9. Instead, the court dismissed the
claim on other grounds. The plaintiff characterized the plan’s exclusion of wilderness programs
as an exclusion of “wilderness behavioral healthcare programs.” Id. at *7 (emphasis in original).
The court found, however, that the plan’s language was not that specific, and that the wilderness
program exclusion applied to all medical benefits, not just mental health and chemical
dependency benefits. Id.
DB Healthcare, LLC v. Blue Cross Blue Shield of Arizona, Inc., 852 F.3d 868, 873 (9th Cir.
2017) (recognizing a motion to dismiss for lack of statutory standing under ERISA is “properly
viewed” as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)) (quoting
Vaughn v. Bay Env’t Mgmt., Inc., 567 F.3d 1021, 1022 (9th Cir. 2009)).

Defendant relies on Mertens v. Hewitt Assocs., in which the Supreme Court considered
whether “ERISA authorizes suits for money damages against nonfiduciaries who knowingly
participate in a fiduciary’s breach of fiduciary duty.” 508 U.S. 248, 251 (1993). There, the
beneficiaries to a qualified ERISA retirement plan sued the plan’s actuary, a private firm, for
monetary damages after the actuary failed to change the plan’s actuarial assumptions to reflect
the additional costs of early retirement by a large number of plan participants, resulting in the
plan’s termination for insufficient assets. Id. at 250. Defendant asserts that Mertens stands for the
proposition that make-whole monetary relief “seeks money damages, which fall outside of the
remedy provisions of 29 U.S.C. § 1132(a)(3).” Mot. Dismiss 14, ECF 24.
However, the Supreme Court later clarified its Mertens decision in Cigna Corp. v.

Amara. The Court observed that in Mertens, “the plaintiff sought ‘nothing other than
compensatory damages’ against a nonfiduciary,” and “that such a claim traditionally speaking,
was legal, not equitable, in nature.” Amara, 563 U.S. at 439 (citing Mertens, 508 U.S. at 253,
255). The Court noted that “appropriate equitable relief” under § 1132(a)(3) could be in the form
of monetary compensation where the defendant is a plan fiduciary. Id. The defendant, as a
fiduciary, is “analogous to a trustee,” and equity courts “possess[] the power to provide relief in
the form of monetary compensation for a loss resulting from a trustee’s breach of duty, or to
prevent the trustee’s unjust enrichment.” Id. at 441–42 (internal quotation marks omitted).
Following Amara, courts have held that beneficiaries may recover “make-whole” relief
against a fiduciary under § 1132(a)(3) where § 1132(a)(1)(B) does not provide adequate relief for
the defendant’s breach of fiduciary duty.3 A.F. v. Providence Health Plan, 157 F. Supp. 3d 899,
920 (D. Or. 2016);4 McGlasson v. Long Term Disability Coverage for All Active Full-Time &

Part-Time Emps., 161 F. Supp. 3d 836, 844 (D. Ariz. 2016). However, plaintiffs “may not
simply ‘repackage’ their § 1132(a)(1)(B) claim and thus obtain duplicative relief.” A.F., 157 F.
Supp. 3d at 920.
Here, plaintiffs have sufficiently alleged that defendant is a fiduciary. “Liability for
breach of fiduciary duty under ERISA may be imposed only against ERISA-defined fiduciaries.”
CSA 401(K) Plan v. Pension Pros., Inc., 195 F.3d 1135, 1138 (9th Cir. 1999). Any person who
exercises discretionary authority over the management or administration of an employee benefit
plan is deemed a fiduciary under ERISA. Id. “A person’s ‘actions, not the official designation of
his role, determines whether he enjoys fiduciary status,’ regardless of what his agreed-upon
contractual responsibilities may be.” Id. (quoting Acosta v. Pac. Enterprises, 950 F.2d 611, 618

(9th Cir. 1991)). A person who makes a discretionary decision to approve or deny benefits to
plan participants is a fiduciary. Bielenberg v. ODS Health Plan, Inc., 744 F. Supp. 2d 1130, 1145
(D. Or. 2010); Wise v. MAXIMUS Fed. Servs., Inc., 445 F. Supp. 3d 170, 186 (N.D. Cal. 2020).
Plaintiffs describe at length that defendant reviewed, evaluated, and denied their claims
and appeals. Am. Compl. ¶¶ 22–57, ECF 36. Plaintiffs cite to letters from defendant explaining

3 Defendant also relies on Paulsen v. CNF Inc., 559 F.3d 1061 (9th Cir. 2009). Mot. Dismiss 14,
ECF 24. There, the Ninth Circuit relied on “Supreme Court precedent” in Mertens to hold that a
claim for make-whole monetary relief from fiduciary defendants seeks money damages and is
not available under § 1132(a)(3). That decision, however, was issued before the Supreme Court’s
decision in Amara.
4 In fact, the defendant in A.F. agreed that after the Court’s decision in Amara, a beneficiary may
recover make-whole relief against a fiduciary under § 1132(a)(3). 157 F. Supp. 3d at 916.
its reasons for denying benefits. Id. ¶¶ 42, 48. Defendant informed plaintiffs that it was
“correctly” denying payment for treatment at Evoke, id. ¶ 24, and “had performed a careful
review of the documentation provided by Sunrise Residential Treatment Center and determined
the treatment was not medically necessary.” Id. ¶ 34. Defendant also told plaintiffs that it “used

internally developed criteria” and “diligently complied with [the Parity Act].” Id. ¶¶ 43–44.
Because plaintiffs have sufficiently pleaded that defendant is a fiduciary under ERISA,
defendant’s reliance on Mertens as categorically precluding monetary damages under
§ 1132(a)(3) is misplaced. Therefore, defendant’s motion to dismiss plaintiffs’ request for make-
whole relief fails. Further, at this stage, the court cannot conclude, and defendant does not
contend, that plaintiffs would otherwise obtain adequate relief under § 1132(a)(1)(B). See
McGlasson, 161 F. Supp. 3d at 844 n.48 (collecting cases where courts concluded that at the
motion to dismiss stage, whether a claim for monetary relief under § 1132(a)(3) was foreclosed
could not be determined).
II. Motion to Dismiss for Failure to Join a Necessary Party

A. Rule 12(b)(7) Standard
Under Rule 12(b)(7), a defendant may challenge the complaint’s failure to join a party
under Rule 19. In evaluating a Rule 12(b)(7) motion to dismiss for failure to join a required
party, allegations in the complaint are accepted as true and any inferences are construed in the
plaintiff’s favor. Dine Citizens Against Ruining Our Env’t v. Bureau of Indian Affs., 932 F.3d
843, 851 (9th Cir. 2019). The burden of persuasion is on the party moving to dismiss for failure
to join. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). “To determine whether
Rule 19 requires the joinder of additional parties, the court may consider evidence outside the
pleadings.” Cagle v. Sattler as trustee of Toni Jean Reitman Revocable Living Tr., No. 3:23-cv-
01413-AN, 2024 WL 2834063, at *2 (D. Or. June 3, 2024) (citing McShan v. Sherrill, 283 F.2d
462, 464 (9th Cir. 1960)). “A Rule 12(b)(7) motion to dismiss for failure to join a party will be
granted only if the court determines that joinder of the party is not possible, and that the party is,
in fact indispensable.” Id. (internal quotation marks omitted).

B. Rule 19 Standard
Rule 19(a) “requires joinder of a party whose presence is necessary to ensure complete
relief among the existing parties, or to protect a party whose interests would be impaired or
impeded were the action to proceed without that party.” Deschutes River All. v. Portland Gen.
Elec. Co., 1 F.4th 1153, 1162–63 (9th Cir. 2021). If joinder is not feasible, the court must then
determine if “in equity and good conscience, the action should proceed among the existing
parties or should be dismissed.” Fed. R. Civ. P. 19(b). The analysis requires a three-step inquiry.
Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 996 (9th Cir. 2020). The court first
determines whether an absent party is required, then whether joinder is feasible, and finally if
joinder is not feasible, whether the action should proceed without the absent party. Id.

Under Rule 19(a), a party can be found necessary to an action in “three different ways.”
Salt River Project Agr. Imp. & Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012). First, if
the court is unable to “accord complete relief among existing parties” in the absence of the party.
Fed. R. Civ. P. 19(a)(1)(A). “Complete relief ‘is concerned with consummate rather than partial
or hollow relief as to those already parties, and with precluding multiple lawsuits on the same
cause of action.’” Alto v. Black, 738 F.3d 1111, 1126 (9th Cir. 2013) (quoting Disabled Rts.
Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004)). Further, “to be
complete, relief must be meaningful relief as between the parties.” Alto, 738 F.3d at 1126
(internal quotation marks omitted). Second, if the party has an interest in the action and
“resolving the action in [the party’s] absence may as a practical matter impair or impede [the
party’s] ability to protect that interest.” Salt River Project Agr. Imp. & Power Dist. v. Lee, 672
F.3d 1176, 1179 (9th Cir. 2012) (citing Fed. R. Civ. P. 19(a)(1)(B)(i)). Third, if the party has an
interest in the action and “resolving the action in [the party’s] absence may leave an existing

party subject to inconsistent obligations because of that interest.” Id. (citing Fed. R. Civ. P.
19(a)(1)(B)(ii)).
Here, defendant argues that the “plan administrators” must be joined to accord complete
relief under Rule 19(a)(1)(A), and that “sponsors and plan administrators” must be joined
because they maintain an interest in the action under Rule 19(a)(1)(B)(i). Mot. Dismiss 10–11,
ECF 24.
C. Complete Relief
Defendant’s argument that complete relief requires joinder of other parties rests entirely
on a dispute over a question of fact that the court must construe in plaintiffs’ favor at this stage.
Plaintiffs allege that defendant “was the insurer and claims administrator, as well as a fiduciary

under ERISA for a fully insured health benefits plan” that provided coverage for plaintiffs
through plaintiff Gerald’s employer during the relevant time period. Am. Compl. ¶ 2, ECF 36
(emphasis added). Defendant, on the other hand, asserts that plaintiff Gerald’s health plan was
self-funded and that defendant merely provided “contractually limited administrative services.”
Mot. Dismiss 10–11, ECF 24. Defendant argues that the plan’s sponsor may choose to terminate
its contract with defendant and work with another administrator, and thus the court’s orders
would not bind those parties unless they are a party to this action. Id. at 10. Defendant, however,
provides no support for the conclusion that the underlying plan is self-funded rather than fully-
insured.5 Without a basis for the court to find that defendant is not the direct insurer, plan
administrator, and fiduciary, there is also no basis for the court to conclude that plaintiffs would
be unable to obtain complete relief from defendant alone as the insurer of a fully-insured health
benefits plan. Moreover, defendant makes no argument that the other relief sought by plaintiffs is

hollow or meaningless. Plaintiff requests, among other relief, “payment . . . as make-whole
relief” and “restitution . . . for their loss arising out of” defendant’s Parity Act violation. See
Berton v. Aetna Inc., No. 23-cv-01849-HSG, 2024 WL 869651, at *6 (N.D. Cal. Feb. 29, 2024)
(denying defendants’ 12(b)(7) motion and observing that even without the plan sponsor of a self-
funded plan, defendant administrators could provide meaningful relief by paying damages based
on their own actions). Defendant’s motion to dismiss for failure to join a necessary party
pursuant to Rule 19(a)(1)(A) therefore fails.
D. Nonparty Legal Interest in the Action
Rule 19(a)(1)(B) states that joinder of a person may be required if “that person claims an
interest relating to the subject of the action.” Fed. R. Civ. P. 19(a)(1)(B). “The Ninth Circuit has

read this element of Rule 19 to require that the absent party affirmatively claim a legally
protected interest, rather than allow a third party to assert that an absent party has a claim.” Smith
v. Martorello, No. 3:18-cv-1651-AC, 2022 WL 1749875, at *4 (D. Or. Mar. 4, 2022) (citing
United States v. Bowen, 172 F.3d 682, 689 (9th Cir. 1999)). The absent party must therefore
“come forward and affirmatively claim an interest in the subject of the litigation.” Id.
Here, defendant asserts that unnamed plans, sponsors, and administrators have an interest
in the action. Mot. Dismiss 10, ECF 24. None of these unnamed individuals or entities have

5 The question was raised at the hearing on this motion, however, defendant offered only its
briefing to support its argument.
come forward to claim an interest in this case. Without more, the court is unable to find that a
required party even exists, much less that there is a legally protected interest or that joinder
would be feasible.
III. Motion to Dismiss Prospective Injunctive Relief for Lack of Article III Standing

Defendant contends that plaintiffs lack standing to claim certain injunctive and
declaratory relief because they are no longer participants in the plan and thus “there is no threat
of future injury and that relief can have no effect on [plaintiffs].” Mot. Dismiss 12–13, ECF 24
(internal quotation marks omitted).
Under Rule 12(b)(1), a defendant may move to dismiss a claim based on lack of Article
III standing. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010).
“The Article III case or controversy requirement limits federal courts’ subject matter jurisdiction
by requiring, inter alia, that plaintiffs have standing.” Id.
“There is no ERISA exception to Article III.” Thole v. U. S. Bank N.A, 590 U.S. 538, 547
(2020). “To have standing under Article III, a plaintiff must have (1) a concrete and

particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by
a favorable judicial decision.” Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020).
Redressability requires a showing by the plaintiff that the relief sought is “(1) substantially likely
to redress their injuries; and (2) within the district court’s power to award.” Id. at 1170. The
redress “must be ‘likely,’ as opposed to merely ‘speculative.’” Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992) (quoting Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26, 38, 43
(1976)). To request “forward-looking relief, [plaintiffs] must face ‘a real and immediate threat of
repeated injury.’” Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting O’Shea v. Littleton, 414
U.S. 488, 496 (1974)). Moreover, plaintiffs “must demonstrate standing separately for each form
of relief sought.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,
185 (2000).
A Rule 12(b)(1) motion to dismiss may be either a facial attack or a factual attack. White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, “the challenger asserts that the

allegations contained in a complaint are insufficient on their face” whereas in a factual attack, the
challenger “disputes the truth of the allegations that, by themselves, would otherwise invoke
federal jurisdiction.” Bunker v. United States, No. 1:12-cv-1742-CL, 2013 WL 5524688, at *2
(D. Or. Oct. 3, 2013) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004)).
Here, defendant makes a facial attack because its motion rests on the sufficiency of
plaintiffs’ pleading rather than its truthfulness. In a facial attack, the court resolves the matter as
it would a motion to dismiss under Rule 12(b)(6): the complaint’s allegations are accepted as
true, all reasonable inferences are drawn in plaintiff’s favor, and only the pleading may be
considered. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “To survive such a motion,

the plaintiff need only make a prima facie showing of jurisdiction.” Bunker, 2013 WL 5524688
at *2.
Plaintiffs allege that defendant provided coverage for them from August 21, 2020, until
December 31, 2020, and thereafter “coverage was provided through another health insurer.” Am.
Compl. ¶ 2, ECF 36. Plaintiffs do not dispute that they are no longer participants in defendant’s
plan. See Resp., ECF 28. However, plaintiffs allege that defendant’s breach of fiduciary duty
entitles them, pursuant to § 1132(a)(3) to “[a]n injunction ordering the Defendant to cease
violating [the Parity Act] and requiring compliance with the statute” and “[a]n order requiring
the reformation of the terms of the Plans and the medical necessity criteria utilized by the
Defendant to interpret and apply the terms of the Plan to ensure compliance with [the Parity
Act].” Am. Compl. ¶ 92(b)–(c), ECF 36. Defendant contends that these forms of relief represent
“forward-looking” remedies that will have “no effect” on plaintiffs because they are no longer
enrolled in defendant’s health plan. Mot. Dismiss 13, ECF 24. Therefore, defendant argues that

plaintiffs lack standing and these remedies should be precluded. Defendant is correct.
The decisions in Beldock v. Microsoft Corp., No. C22-1082JLR, 2023 WL 1798171
(W.D. Wash. Feb. 7, 2023), and Duran v. California Dep’t of Forestry & Fire Prot., No. 23-
16155, 2024 WL 3565266 (9th Cir. July 29, 2024) (unpublished), are instructive. In Beldock, the
plaintiffs, who were former employees of defendant Microsoft, alleged that the defendants
breached their fiduciary duty under ERISA by employing poor decision-making in selecting
investment vehicles that a prudent fiduciary would not have selected. 2023 WL 1798171 at *1.
Plaintiffs sought, among other forms of relief, a “declaratory judgment that Defendants’ acts
violated ERISA; a permanent injunction against Defendants prohibiting the practices described
in the complaint and requiring Defendants to act in the best interests of the Plan and its

participants.” Id. at *3. The defendants moved to dismiss the plaintiffs’ claims for prospective
injunctive relief, claiming that they lacked Article III standing because they were former
employees and former participants in the plan and would not benefit from such relief. Id. at *3,
5. The court agreed, observing that “[t]o establish Article III standing to seek prospective
injunctive relief, a plaintiff must plausibly allege that he or she is likely to suffer future injury
from the conduct he or she seeks to enjoin.” Id. at *5. The court explained that “none of the three
Plaintiffs alleges that he is likely to become reemployed by Microsoft and to participate again in
the Plan.” Id. Consequently, the court found that “none of the Plaintiffs plausibly alleges that he
is likely to suffer future injury if the court does not enjoin the conduct challenged in the
complaint.” Id.
In Duran, the plaintiffs, who were employees of defendant California Department of
Forestry and Fire Protection, challenged the defendants’ COVID-19 testing policy. 2024 WL

3565266 at *1. The plaintiffs sought, among other relief, to prevent the defendants from re-
instituting mandatory testing. Id. Although the testing had ended by the time the plaintiffs’ filed
their lawsuit, they claimed there a possibility, “even likely,” that the testing policy “may remain
in place for some employees who are unvaccinated or refuse to disclose their vaccination status.”
Id. The court noted that “[t]o have standing to seek forward-looking relief—either declaratory or
injunctive—Plaintiffs must allege an imminent injury.” Id. The court held that the plaintiffs “lack
standing because they have failed to allege facts supporting imminent injury,” in that they “failed
to allege facts suggesting that there was a ‘substantial risk’ that they will be subject to testing
policy in the future.” Id. (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).
Here, plaintiffs lack standing for prospective relief in the form of an injunction requiring

defendant to comply with the Parity Act and an order requiring defendant to reform the terms of
the plan to comply with the Parity Act because those forms of relief would not benefit plaintiffs.
See Am. Compl,. ¶ 92(b) & (c). Plaintiffs also broadly seek a “declaration that the actions of”
defendant violates the Parity Act; however, to the extent they seek prospective relief, that claim
is also foreclosed for lack of standing. See Am. Compl. ¶ 92(a). Like the plaintiffs in Beldock,
plaintiffs are no longer enrolled in the plan they seek to have modified, and fail to allege or
otherwise demonstrate that they will likely be enrolled at any point in the future. Consequently,
any changes defendant makes with respect to the terms of the plan will have no effect on
plaintiffs and they are therefore not entitled to the prospective relief requested in paragraphs
92(a), (b), and (c) of the Amended Complaint.
RECOMMENDATIONS
Defendant’s Motion to Dismiss [24] and Supplemental Motion to Dismiss [38] should be

granted in part and denied in part in that: the motion to dismiss plaintiffs’ § 1132(a)(1)(B) claim
should be denied; the motion to dismiss plaintiff’s Parity Act claim should be denied; the motion
to dismiss plaintiffs’ claim for restitution should be denied; the motion to dismiss for failure to
join a necessary party should be denied; and the motion to dismiss prospective declaratory and
injunctive relief should be granted.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if
any, are due Thursday, August 14, 2025. If no objections are filed, then the Findings and
Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings
and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal
Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED July 31, 2025.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130659. Public record. Not legal advice.