Wall v. Reliance Standard Life Insurance Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LUCAS WALL,

Plaintiff,
v.
Civ. Action No. 20-2075
RELIANCE STANDARD LIFE (EGS)
INSURANCE CO.,

Defendant.

MEMORANDUM OPINION

Plaintiff Lucas Wall (“Mr. Wall”), proceeding pro se,

brings this lawsuit against Reliance Standard Life Insurance

Company (“Reliance”) seeking $10,000 in damages for: (1)

harassment; (2) invasion of privacy; and intentional infliction

of emotional distress arising out of the termination of his

disability benefits. Compl., ECF No. 1-1 at 1-2. Mr. Wall filed

his claim in the Small Claims and Conciliation Branch of the

Superior Court of the District of Columbia, and Reliance removed

the action to this court, alleging federal jurisdiction based on

the Employment Retirement Income Security Act of 1974 (“ERISA”)

and 29 U.S.C. §§ 1132(e)(1) and 1132(f). Notice of Removal, ECF

No. 1 at 2.

Pending before the Court is Mr. Wall’s Motion for Leave to

File Second Amended Complaint. See ECF No. 21. Upon

1
consideration of the motion, opposition, reply, and the

applicable law, Mr. Wall’s motion is GRANTED IN PART AND DENIED

IN PART.

I. Background

Mr. Wall alleges that his long-term disability benefits

(“benefits”) are provided by a policy underwritten and

administered by Reliance for the employees of the American

Association of State Highway & Transportation Officials, by whom

he was employed from June 2008 until March 2012. Id. at 19-20.

In March 2012, Mr. Wall became “Totally Disabled” due to Non-24-

Hour Sleep/Wake Disorder. Id. at 20. Mr. Wall received benefits

until January 29, 2020, when Reliance notified him that it was

terminating his benefits. Id. at 21. Mr. Wall alleges that

Reliance’s “termination of [his] benefits was based in great

part on a November 10, 2019, ‘peer review’ of his medical

records by Defendant Dr. David Brodner.” Id. Mr. Wall further

alleges that in response to his appeal of the termination

decision, Reliance “commissioned another ‘peer review’ by

Defendant Dr. Tajuddin Jiva” and that Reliance denied his appeal

on July 29, 2020. Id. at 21-22 Thereafter, Reliance had Mr. Wall

undergo an Independent Medical Examination (“IME”), after which

the termination of his benefits was reversed. Id. at 22. In

response to the notification he received that his benefits were

being reinstated, Mr. Wall “demanded [Reliance] revise the

2
letter with five specific paragraphs ensuring [he] will be

protected from its arbitrary and capricious decisionmaking in

the future.” Id. at 23.

Based on these alleged facts, Mr. Wall’s Amended Complaint

asserts the following claims: (1) demand for payment of

interest, costs & fees, & judicial relief to ensure continued []

benefits under ERISA against Reliance, including violations of

ERISA; (2) bad faith against all defendants and breach of

implied contractual covenant of good faith and fair dealing, and

violations of Pennsylvania insurance law by Reliance; (3)

intentional infliction of emotional distress against all

defendants; (4) negligence against all defendants; (5)

harassment against Reliance; (6) invasion of privacy against

Reliance; (7) medical malpractice against Dr. Brodner and Dr.

Jiva. See id. at 24-62.

On September 14, 2020, Mr. Wall filed a Motion for Leave to

File Amended Complaint, see ECF No. 16; but withdrew that motion

on September 24, 2020, see ECF No. 20. On the same day, however,

Mr. Wall filed a Motion for Leave to File Second Amended

Complaint, see ECF No. 21; which the Court will construe as a

Motion for Leave to File an Amended Complaint since Mr. Wall

withdrew his first request for leave to file an amended

complaint.

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II. Standards of Review

A. Federal Rule of Civil Procedure 15

Federal Rule of Civil Procedure 15 provides that a

plaintiff may amend his complaint more than 21 days after a

responsive pleading has been filed with the consent of the

defendant or the leave of court, see Fed. R. Civ. P. 15(a); and

that “[t]he court should freely give leave when justice so

requires," see Fed. R. Civ. P. 15(a)(2). “Courts may deny a

motion to amend a complaint as futile . . . if the proposed

claim would not survive a motion to dismiss.” James Madison Ltd.

By Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962)). “[I]n assessing an

argument that an amendment would be futile, the court must

assess the proposed amendments under the same standard as would

be applied to a motion to dismiss.” Oladokun v. Corr. Treatment

Facility, 5 F. Supp. 3d 7, 13 (D.D.C. 2013). "Because amendments

are to be liberally granted, the non-movant bears the burden of

showing why an amendment should not be allowed." Abdullah v.

Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008), app.

dismissed, No. 08-7022, 2008 U.S. App. Lexis 9082 (D.C. Cir.

Mar. 12, 2008) (citing Dove v. WMATA, 221 F.R.D. 246, 2476

(D.D.C. 2004).

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 B. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, (2007) (internal quotation marks omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint "must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)

(internal quotation marks omitted). A claim is facially

plausible when the facts pled in the complaint allow the court

to "draw the reasonable inference that the defendant is liable

for the misconduct alleged." Id. The standard does not amount to

a "probability requirement," but it does require more than a

"sheer possibility that a defendant has acted unlawfully." Id.

"[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint." Atherton v.

D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)

(internal quotation marks omitted). “In determining whether a

5
complaint fails to state a claim, [the Court] may consider only

the facts alleged in the complaint, any documents either

attached to or incorporated in the complaint and matters of

which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). In

addition, the court must give the plaintiff the "benefit of all

inferences that can be derived from the facts alleged." Kowal v.

MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A "pro

se complaint is entitled to liberal construction." Washington v.

Geren, 675 F. Supp. 2d 26, 31 (D.D.C. 2009) (citation omitted).

Even so, "[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements" are not

sufficient to state a claim. Iqbal, 556 U.S. at 678.

III. Analysis

A. ERISA Claims

In Count I, Mr. Wall demands payment of interest, costs and

fees from Reliance; judicial relief to ensure continued benefits

under ERISA from Reliance, and contends that Reliance violated

ERISA when it terminated his benefits for six months. Am. Compl.,

ECF No. 21 at 24-36.

ERISA’s civil enforcement provision provides that “[a]

civil action may be brought—(1) by a participant or beneficiary—

... (B) to recover benefits due to him under the terms of his

plan, to enforce his rights under the terms of the plan, or to

6
clarify his rights to future benefits under the terms of the

plan.” 29 U.S.C. § 1132(a)(1)(B).

1. Administrative Exhaustion and Mootness

Reliance argues that Mr. Wall’s motion should be denied

because he filed his Superior Court complaint prior to

exhausting his administrative remedies as the appeal of the

termination of his benefits was pending, and that his claims

against Reliance are moot because Mr. Wall’s benefits have since

been reinstated. Opp’n, ECF No. 22 at 4-6. Reliance also argues

that Mr. Wall’s claims for interest, costs, or fees are “null”

for the same reason. Id. at 11. Mr. Wall does not dispute that

he filed his Superior Court complaint before he exhausted his

administrative remedies, Reply, ECF No. 23 at 2; however, there

is also no dispute that those remedies have been exhausted at

this time.

“It is well established that, barring exceptional

circumstances, plaintiffs seeking a determination pursuant to

ERISA of rights under their pension plans ‘must ... exhaust

available administrative remedies under their ERISA-governed

plans before they may bring suit in federal court.’”

Communications Workers of America v. American Tel. and Tel. Co.,

40 F.3d 426, 431 (D.C. Cir. 1994) (internal quotation marks and

citations omitted). However, “[b]ecause ERISA itself does not

specifically require the exhaustion of remedies available under

7
pension plans, courts have applied this requirement as a matter

of judicial discretion.” Id. at 432. Among the reasons for

applying this requirement is to avoid judicial review where “a

plan’s own remedial procedures [] resolve[s] [the] claims.” Id.

Mr. Wall has now exhausted his administrative remedies and

his benefits have been reinstated by Reliance. He seeks to amend

his complaint to add, among other things, certain ERISA claims.

As explained below, Mr. Wall states certain claims under ERISA.

Accordingly, there is no reason for the Court to apply the

exhaustion requirement at this time and dismiss Mr. Wall’s

complaint. The Court rejects Reliance’s argument that Mr. Wall’s

claims are moot because his benefits have been reinstated,

because Mr. Wall seeks to amend his complaint to assert

different ERISA claims.

2. Interest on Withheld Benefits

Mr. Wall alleges that Reliance has not paid the interest on

the long-term disability benefits that were withheld for six

months. Am. Compl., ECF No. 21 at 25. Reliance argues that Mr.

Wall is not entitled to pre-judgment interest because there has

been no judgment in this case. Opp’n, ECF No. 22 at 11-12.

“[P]rejudgment interest on unpaid ERISA benefits is

presumptively appropriate” because: (1) “to permit the fiduciary

to retain the interest earned on wrongly withheld benefits would

amount to unjust enrichment—a fiduciary would benefit from

8
failing to pay ERISA benefits”; (2) “prejudgment interest

ensures that a beneficiary is fully compensated, including for

the loss of the use of money that is his”; and (3) “prejudgment

interest promotes settlement and deters any attempt to benefit

unfairly from inevitable litigation delay.” Moore v. Capital

Care, 461 F.3d 1, 12-13 (D.C. Cir. 2006) (citations omitted).

This same reasoning arguably applies to unpaid interest on the

benefits that Mr. Wall alleges were withheld for six months.

Accordingly, Mr. Wall states a claim for recovery of the

interest on the withheld benefits. 29 U.S.C. § 1132(a)(1)(B).

3. Attorney’s Fees

Mr. Wall seeks costs and attorney’s fees, to be paid to an

attorney should he hire one, or to himself if he continues to

represent himself pro se. Am. Compl., ECF No. 21 at 62. Reliance

argues that Mr. Wall is not entitled to collect fees because he

is not an attorney. Opp’n, ECF No. 22 at 12. However, none of

the cases cited by Reliance concern whether a party proceeding

pro se can recover attorney’s fees under ERISA. See id. at 12.

Whether Mr. Wall would be entitled to attorney’s fees can be

determined at a later time.

4. Equitable Relief Under ERISA

Mr. Wall alleges that Reliance’s termination of his long-

term disability benefits constitutes a violation of ERISA, and

seeks “equitable relief under ERISA to ensure this illegal

9
action never happens in the future and to compensate [him] for

the damages [he has] incurred because of the illegal act.” Am.

Compl., ECF No. 21 at 27-32. Reliance argues that Mr. Wall lacks

standing to assert a claim for future equitable relief. Opp’n,

ECF No. 22 at 12-13.

ERISA provides that a participant may bring a civil action

“to clarify his rights to future benefits under the terms of the

plan,” 29 U.S.C. § 1132(a)(1)(B); and “(A) to enjoin any act or

practice which violates any provision of this subchapter or the

terms of this plan, or (B) to obtain other appropriate relief

(i) to redress such violations or (ii) to enforce any provisions

of this subchapter or the terms of the plan,” 29 U.S.C. §

1132(a)(3). “A participant or beneficiary can [] bring suit

generically to ‘enforce his rights’ under the plan, or to

clarify any of his rights to future benefits.” Aetna Health Inc.

v. Davila, 542 U.S. 200, 210-11 (2004). The Court rejects

Reliance’s argument as the plain language of the statute

provides that a participant may bring a civil action to clarify

his rights to future benefits.

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is GRANTED as to his claims for: (1) interest on the

six months of withheld benefits; (2) clarification of his right

to future benefits; and (3) enforcing his rights under the plan.

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 B. State Common Law Claims

Reliance argues that all of Mr. Wall’s state law claims are

pre-empted by ERISA. Opp’n, ECF No. 22 at 10. 1

ERISA preempts “any and all State laws insofar as they may

now or hereafter relate to any employee benefit plan.” 29 U.S.C.

§ 1144(a). The Supreme Court has explained that its

case law to date has described two categories
of state laws that ERISA pre-empts. First,
ERISA pre-empts a state law if it has a
“‘reference to’ ” ERISA plans. [New York State
Conference of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., 514 U.S. 645, 565
(1995)]. To be more precise, “[w]here a
State's law acts immediately and exclusively
upon ERISA plans ... or where the existence of
ERISA plans is essential to the law's
operation ..., that ‘reference’ will result in
pre-emption.” [California Div. of Labor
Standards Enforcement v. Dillingham Constr.,
N.A., Inc., 519 U.S. 316, 325 (1997) (SCALIA,
J., concurring). Second, ERISA pre-empts a
state law that has an impermissible
“connection with” ERISA plans, meaning a state
law that “governs ... a central matter of plan
administration” or “interferes with
nationally uniform plan administration.”
Egelhoff v. Egelhoff, 532 U.S. 141, 148, 121
S.Ct. 1322, 149 L.Ed.2d 264 (2001). A state
law also might have an impermissible
connection with ERISA plans if “acute, albeit
indirect, economic effects” of the state law
“force an ERISA plan to adopt a certain scheme
of substantive coverage or effectively
restrict its choice of insurers.” Travelers,

1
Reliance also argues that the individual defendants are not
proper parties to the suit because they are not fiduciaries.
Opp’n, ECF No. 22 at 10. However, the Court has not “recast” Mr.
Wall’s claim as an ERISA claim to recover benefits and so the
persuasive authority relied on by Reliance is inapposite. See
Hogan v. Jacobson, 823 F.3d 872, 883 (6th Cir. 2016).

11
 supra, at 668, 115 S. Ct. 1671. When
considered together, these formulations
ensure that ERISA's express pre-emption clause
receives the broad scope Congress intended
while avoiding the clause's susceptibility to
limitless application.

Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 319-20 (2016).

To determine whether a claim is preempted, the court

“simply asks if state law conflicts with the provisions of ERISA

or operates to frustrate its objects.” VanderKam v. VanderKam,

776 F.3d 883, 890 (D.C. Cir. 2015) (quoting Boggs v. Boggs, 520

U.S. 833, 841 (1997)). And “in order to answer that question, we

must first ascertain the federal interest,” which the Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has stated is “to promote the interests of employees and their

beneficiaries in employee benefit plans.” VanderKam, 776 F.3d at

890 (internal quotation marks and citations omitted).

1. Count II: Bad Faith Against All Defendants,
Breach of Implied Contractual Covenant of Good
Faith and Fair Dealing, and Violations of
Pennsylvania Insurance Law

Mr. Wall alleges bad faith by Reliance in “fail[ing] to

thoroughly investigate [his] worsening medical conditions before

illegally terminating [his] claim in January 2020 and upholding

that termination six months later on appeal.” Am. Compl., ECF

No. 21 at 40. He further alleges bad faith in Reliance’s delay

in sending him for an IME. Id. However, and as Mr. Wall

acknowledges, see Am. Compl., ECF No. 21 at 29 ¶ 169, District

12
of Columbia law does not “recognize a tort of bad faith by

insurance companies in the handling of policy claims.” Choharis

v. State Farm Fire & Cas. Co., 961 A.2d 1080, 1087 (D.C. 2008).

With regard to Mr. Wall’s claim for breach of implied

contractual covenant of good faith and fair dealing, the

District of Columbia Court of Appeals has stated that

Under District of Columbia law, every contract
contains within it an implied covenant of both
parties to act in good faith and damages may
be recovered for its breach as part of a
contract action. See Murray v. Wells Fargo
Home Mortgage, 953 A.2d 308, 321 (D.C. 2008)
and cases cited. Disputes relating to the
respective obligations of the parties to an
insurance contract should generally be
addressed within the principles of law
relating to contracts, and bad faith conduct
can be compensated within those principles.

Id. Mr. Wall’s breach of contract claim essentially alleges that

Reliance “improper[ly] process[ed his] claim”; it is therefore

preempted by ERISA. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

57 (1987) (concluding that the plaintiff’s state law claims for

bad faith and breach of contract “asserting improper processing

of a claim for benefits and an ERISA-regulated plan” did not

fall within ERISA’s savings clause and so were preempted);

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 114 (2d

Cir. 2008) (affirming dismissal of plaintiff’s state law claims

sounding in breach of contract, breach of the covenant of good

faith and fair dealing, violation of the Connecticut Unfair

13
Trade Practices Act, reckless misrepresentation, negligent

misrepresentation, and tortious interference with contract as

preempted by ERISA); The Psychiatric Institute of Washington,

D.C., Inc. v. Connecticut General Life Insurance Company, 780 F.

Supp. 24 (D.D.C. 1992) (state law breach of contract claim

preempted by ERISA).

As to his claims for “bad faith” against Dr. Brodner and

Dr. Jiva, Mr. Wall has presented no authority supporting a

common law cause of action for “bad faith” under District of

Columbia law based on the allegations in the Amended Complaint,

and the Court is aware of none.

Mr. Wall alleges that Reliance’s “bad faith conduct

violates [Pennsylvania] insurance law regarding unfair claim

determination practices.” Am. Compl., ECF No. 21 at 42. Mr. Wall

alleges that Reliance is based in Pennsylvania and seeks

punitive damages pursuant to an alleged violation of 42 Pa.C.S.

§ 8371. Am. Compl., ECF No. 21 at 42. However, the United States

Court of Appeals for the Third Circuit has ruled that claims

brought pursuant to 42 Pa.C.S. § 8371 are preempted by ERISA,

and the Court finds that ruling persuasive. Barber v. Unum Life

Insurance Co., 383 F. 3d 134 (3d Cir. 2004).

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is DENIED as to his bad faith, breach of contract, and

14
violations of Pennsylvania insurance law claims as they would

not survive a motion to dismiss.

2. Count III: Intentional Infliction of Emotional
Distress Against All Defendants

Mr. Wall alleges that “all three defendants ha[ve] a

professional obligation to care for [his] well-being because [he

is] disabled.” Am. Compl., ECF No. 21 at 51. Mr. Wall further

alleges that Dr. Brodner and Dr. Jiva “ha[ve] a relationship

with [him] that implicates [his] well being because they were

tasked with professionally evaluating [his] medical records and

determining whether there was any cause to terminate [his]

disability benefits.” Id. Mr. Wall alleges that the individual

defendants “breached their duty to avoid inflicting emotional

distress on [him] by writing reports full of falsehoods

concluding that [he is] no longer disabled, without any evidence

to support their findings.” Id. Mr. Wall also argues that the

defendants have violated the public policy of the United States

to protect people with disabilities, id. at 53; and that the

defendants should be held to a higher standard of behavior

because they were on notice of his particular susceptibility to

emotional distress, id.

Courts in other circuits have held that certain claims for

intentional infliction of emotional distress are not preempted

15
by ERSIA. In Dasie v. The Reed Group, LTD., No. C 15-0318, 2015

WL 6954915 (N.D. Ca. Nov. 10, 2015), the plaintiff

allege[d] such tortious conduct as falsely
accusing plaintiff of “lying” about his
disability, urging plaintiff to take
experimental medications, inducing plaintiff
to increase his medications, forcing plaintiff
“to undergo a litany of rigorous medical
examinations without considering their
results,” and pressuring plaintiff “to engage
in further medical testing that it knew would
cause ... pain, emotional distress and
anxiety.

Id. at *4 (internal quotation marks omitted). The Court held

that the claim was not preempted because: (1) plaintiff’s

request for “damages associated with his claim for intentional

infliction of emotional distress . . . is based on allegations

that involve harassing and oppressive conduct independent of the

duties of administering an ERISA plan” and therefore “falls

outside the scope of ERISA and could not have been brought under

Section 502(a)(1)(B),” id. at * 2; and (2) the “defendant’s duty

to not engage in the alleged tortious conduct existed

independent of defendants’ duties under the ERISA plan,” id. at

*3. The Court rejected the defendant’s argument that the claim

was preempted “because it is an attempt to use an alternative

enforcement mechanism to achieve the same ends provided by

ERISA” because the “plaintiff’s claim for intentional infliction

of emotional distress arises from alleged harassing and

oppressive conduct beyond the denial of benefits” and because

16
plaintiff was not claiming that “the claim arose from the

defendant’s failure to timely pay benefits.” Id.

In Barker v. The Hartford Life and Accident Insurance Co.,

Civil Action No. 3:06-CV-1514-P, 2007 WL 2192298 (N.D. Tx., July

31, 2007), the plaintiff’s claim for intentional infliction of

emotional distress arose “from alleged humiliating, shameful,

and intentional harassment by Defendant during more than one

phone call.” Id. at *5. The court held that this claim was not

preempted based on the following reasoning:

Clearly, Barker's IIED claim would not exist
in the absence of the Plan; however, the Court
finds this too tenuous a connection to warrant
ERISA preemption. The harassment alleged by
Barker occurred during the investigation of
Barker's ERISA claim, not during the actual
administration of benefits. Remedying such
tortious conduct is not an area of exclusive
federal concern, but is traditionally left to
the states. Put another way, the right Barker
has to be free from such hostile or
intimidating treatment exists independently
from his rights under his ERISA plan. If such
claims were held to be preempted by ERISA,
Barker would be subject to such treatment with
no available recourse, and a plan
administrator could investigate a claim in all
manner of tortious ways with impunity.

Id. at *4 (internal quotation marks omitted). Whether a claim

for intentional infliction of emotional distress is pre-empted

by ERISA appears to be a matter of first impression in this

circuit. The Court need not reach that question, however,

because even if such a claim was not pre-empted, the conduct

17
alleged by Mr. Wall does not rise to the level of outrageousness

needed to state a claim for intentional infliction of emotional

distress.

Mr. Wall seeks damages arising out of the “extreme

emotional distress” caused by “suddenly termination long-term

disability benefits [he] had received for eight years [and]

cutting off half [his] income with only a one-month notice” and

alleges that “[a]ll defendants engaged in extreme and outrageous

conduct that intentionally or recklessly caused [him] to suffer

extreme emotional distress.” Am. Compl., ECF No. 21 at 53.

With regard to the claim against Reliance, Mr. Wall alleges

that Reliance employees: (1) “went about their quest to

terminate [his] benefits with reckless disregard of the

probability of causing emotional distress”; and (2) “ignored

countless records showing [he is] Totally Disabled. They have

maintained false diagnoses for [him] in the files, trying to

minimize the severity of [his] medical conditions. They have

failed to honor the findings of a federal administrative law

judge, two Independent Medical Exams, and [Reliance] itself that

[he is] Totally Disabled. They have spent thousands of dollars

to try to inflict this distress on [him] – all for no good

reason.” Ex. 8 to Am. Compl., ECF No. 21-8 at 31-32. 2 He further

2 Mr. Wall “incorporate[s] all arguments concerning Defendant
[Reliance’s] intentional infliction of emotional distress from

18
alleges that the “Labor Market Survey” Reliance crafted was

based on faulty determinations by Dr. Brodner. Id. at 15-18.

With regard to the claim against Dr. Brodner, Mr. Wall

alleges that “Dr. Brodner’s gross incompetence and gross

negligence led to a determination . . . terminating [his] . . .

benefits.” Ex. 9 to Am. Compl., ECF No. 21-9 at 3. 3 Mr. Wall

alleges that Reliance’s termination of his benefits was based on

a November 2019 peer review by Dr. Brodner that contains the

following alleged errors: (1) he relied on an outdated diagnosis

that was discredited by a 2016 IME, id. at 2; (2) his report

contains no evidence to indicate that Mr. Wall’s condition has

improved, id. at 2-3; (3) his opinion is contradicted by IMEs

that were conducted in 2016 and 2017, id. at 3; (4) he failed to

review the record of Mr. Wall’s most recent visit to the Center

for Sleep and Wake Disorders, id. at 3-4; (5) he failed to

review Mr. Wall’s sleep logs, id. at 4; (6) he ignored

additional disorders with which Mr. Wall is diagnosed, id. at 4-

5; (7) he failed to review a 2017 test result and therefore

[his] April 30, 2020, appeal letter.” Am. Compl., ECF No. 21 at
52.
3
Mr. Wall “incorporate[s] all arguments concerning Defendant Dr.
Brodner’s intentional infliction of emotional distress from
[his] Florida Department of Health complaint.” Am. Compl., ECF
No. 21 at 52. Exhibits 8 and 21 to the Amended Complaint contain
the same allegations regarding the errors in Dr. Brodner’s peer
review; the Court cities to appeal letter at Exhibit 8 to the
Amended Complaint for ease of reference.

19
erroneously states that Mr. Wall’s current treatment plan

includes “management with CPAP,” id. at 5-6; (7) his report

indicates that Mr. Wall currently takes a number of medications

that [he] not taken for years, id. at 5-6; (8) he faulted Mr.

Wall for not using CPAP based on a sleep specialist’s

recommendation, id. at 6; (9) he failed to review Social

Security Administration records regarding Mr. Wall’s disability

determination, id. at 6-7; (10) he failed to consider

conclusions from a 2017 psychotherapy report indicating that Mr.

Wall is compliant with his treatment, id. at 7-8; (11) he failed

to review key sources including the IME’s by Dr. Barnes and

Singleton, sleep logs, recent medical records, the Social

Security legal judgment, and sleep data graphs, id. at 8-9; (12)

he failed to provide support for his opinion that Mr. Wall “does

have work capacity on a full-time basis for employment which

does not require consistent scheduling,” id. at 10; and (13) he

erroneously concluded that Mr. Wall could meet project deadlines

because he is able to maintain a travel blog and meet travel

schedule demands, id. at 11-14

Mr. Wall alleges that the decision to uphold the

termination determination was based on a peer review by Dr. Jiva

that contained the following alleged errors by Dr. Jiva 4: (1) he

4
Mr. Wall “incorporate[s] all arguments concerning Defendant Dr.
Jiva’s intentional infliction of emotional distress from [his]

20
“lied” when he claimed to be a sleep specialist, Ex. 22 to Am.

Compl., ECF No. 22-21 at 7; (2) he reviewed old records that are

irrelevant to Mr. Wall’s current diagnosis, id. at 8;(3) he

failed to review Mr. Wall’s sleep logs, id.; (4) he failed to

review other important records, id.; (5) his review was not

independent because he reviewed biased documents, id. at 9; (6)

his review was based on a diagnosis that has been dismissed,

rather than his current diagnoses, id. at 9-10; (7) he failed to

examine the record of Mr. Wall’s most recent visit to the Center

for Sleep & Wake Disorders, id. at 10; (8) he ignored additional

disorders with which Mr. Wall is diagnosed, id. at 11-12; (9) he

erroneously stated that Mr. Wall has not undergone

chronotherapy, id. at 12-13; (10) he erroneously stated that Mr.

Wall was not compliance with light therapy and melatonin

treatments, id. at 13; (11) he ignored Mr. Wall’s experience

taking Ritalin and Nuvigil, which he discontinued taking upon

the advice of physicians, id. at 13-14; (12) he erroneously

stated that Mr. Wall did not do an actigraphy study, id. at 13;

(13) he erroneously stated that Mr. Wall does not maintain sleep

logs, id. at 14-17; (14) he made a number of miscellaneous

errors, id. at 17-18; (15) he erroneously stated that Mr. Wall

should be able to “follow[] a strict sleep hygiene routing,” id.

New York State Department of Health complaint.” Am. Compl., ECF
No. 21 at 52.

21
at 19; (16) he failed to review Mr. Wall’s Social Security

Administration records, id. at 19; (17) he ignored relevant

medical opinions, id. at 19, 20; (18) he stated that Mr. Wall’s

“prognosis is fair” despite there being no evidence to support

it, id. at 19; and (19) he erroneously concluded that Mr. Wall

has the capacity to work on a full time basis, id. at 21-24.

“To succeed on a claim of intentional infliction of

emotional distress, a plaintiff must show (1) extreme and

outrageous conduct on the part of the defendant which (2)

intentionally or recklessly (3) causes the plaintiff severe

emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189

(D.C. 2013) (internal quotation marks omitted). “The conduct

must be so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized

community.’” Id. (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1312

n.10 (D.C. 1994) (quoting Restatement (Second) of Torts § 46

cmt. d (1965))). “The ultimate question is whether the

recitation of the facts to an average member of the community

would arouse his [or her] resentment against the actor, and lead

him [or her] to exclaim ‘Outrageous!’ ” Purcell v. Thomas, 928

A.2d 699, 711 (D.C. 2007) (internal quotation marks omitted)

(alterations original).

22
 The Court by no means discounts the emotional distress that

Mr. Wall alleges that the termination of his benefits caused

him. He has alleged in great detail numerous errors in Dr.

Brodner’s and Dr. Jiva’s reports, upon which Reliance allegedly

relied in making its termination decision and then affirming

that decision on appeal. However, those errors do not amount to

the kind of outrageous behavior that needs to be alleged to

state a claim for intentional infliction of emotional distress.

In contrast with Dasie, the conduct Mr. Wall alleges does not

rise to the level of outrageous conduct alleged there, where the

plaintiff alleged that the defendant “falsely accus[ed him] of

lying about his disability, urg[ed him] to take experimental

medications, induc[ed him] to increase his medications, forc[ed

him] to undergo a litany of rigorous medical examinations

without considering their results, and pressur[ed him] to engage

in further medical testing that it knew would cause ... pain,

emotional distress and anxiety.” Dasie, 2015 WL 6954915, at *4.

And in contrast with Barker, he does not allege “humiliating,

shameful, and intentional harassment . . . during more than one

phone call. Barker, 2007 WL 2192298, at *4. Mr. Wall alleges

numerous errors by Reliance, Dr. Brodner, and Dr. Jiva, but does

not allege “conduct . . . so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

23
intolerable in a civilized community.” Armstrong, 80 A.3d at 189

(internal quotation marks omitted).

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is DENIED as to his intentional infliction of

emotional distress claims against Reliance, Dr. Brodner, and Dr.

Jiva as those claims would not survive a motion to dismiss.

3. Count IV: Negligence Against All Defendants

Mr. Wall alleges that Reliance was negligent when it

improperly terminated his benefits, and incorporating the

allegations supra Section III.B.2 regarding Dr. Brodner and Dr.

Jiva, alleges that they were negligent because of the alleged

errors in their peer review reports. Am. Compl., ECF No. 21 at

56-57.

To state a claim for negligence under District of Columbia

law, Mr. Wall must allege “(1) the existence of a duty owed by

the defendant to the plaintiff, (2) a negligent breach of that

duty by the defendant, and (3) an injury to the plaintiff (4)

proximately caused by the defendant's breach.” Powell v.

District of Columbia, 602 A.2d 1123, 1133 (D.C. 1992).

With regard to Reliance, Mr. Wall alleges that: (1)

Reliance owed a duty to “ensure it continued [his] long-term

disability benefits as provided by the policy since [he]

remain[s] Totally Disabled”; (2) it negligently breached that

duty by improperly terminating his benefits; (3) he was injured

24
by that breach; and (4) Reliance’s “negligence in improperly

terminating [his] benefits was the direct and proximate” cause

of his injuries. Am. Compl., ECF No. 21 at 56. With regard to

Dr. Brodner and Dr. Jiva, Mr. Wall alleges that the they “owe[d]

a reasonable duty of care to ensure they performed factually

accurate, independent ‘peer reviews’ of [his] medical records

under contract” with Reliance. Mot. ECF No. 21 at 57.

As instructed by the D.C. Circuit, the Court asks if the

common law negligence claims “conflict[] with the provisions of

ERISA or operate[] to frustrate its objects.” VanderKam, 776

F.3d at 890. The Court concludes that they do. First, the claims

conflict with ERISA’s civil enforcement provision, which

provides that “[a] civil action may be brought—(1) by a

participant or beneficiary—... (B) 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.” 29 U.S.C. § 1132(a)(1)(B).

Pursuant to this provision, courts consider whether the denial

of benefits by a plan administrator was a reasonable one based

on the evidence before the administrator at the time the

decision was made. Soland v. George Washington University, 916

F. Supp. 2d 33, 39 (D.D.C. 2013); see also Marcin v. Reliance

Standard Life Insurance Company, 861 F.3d 254, 267 (2017)

(finding that Reliance acted unreasonably in denying disability

25
benefits). Mr. Wall’s allegations wholly pertain to the manner

in which Reliance made its decision to terminate his benefits.

Second, the claims “supplement[] . . . the ERISA civil

enforcement remedy,” Aetna Health Inc. v. Davila, 542 U.S. 200,

209 (2004); because they ask the Court to review the manner in

which the termination decision was made. Accordingly, these

claims “conflict[] with the clear congressional intent to make

the ERISA remedy exclusive.” Davila, 542 U.S. at 209; see also

Olivo v. Elky, 646 F. Supp. 2d 95 (D.D.C. 2009) (dismissing

plaintiffs’ common law negligence claim because “the wrongdoing

alleged is by Plan personnel in the course of the administration

of the Plan.”).

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is DENIED as to his negligence claims against

Reliance, Dr. Brodner, and Dr. Jiva as those claims would not

survive a motion to dismiss.

4. Count V: Harassment Against Reliance, Count VI:
Invasion of Privacy Against Reliance

Mr. Wall alleges that Reliance hired private investigators

in 2015, 2017, and 2019 at a cost of $2,207 for “three

investigations into [his] personal life . . . .” Ex. 8 to Am.

Compl., ECF No. 21-8 at 20-22. With regard to the 2019

background investigation conducted by Claims Bureau USA, Mr.

Wall points to the following conduct by the investigators to

26
support these claims: (1) review of his travel blog; (2) review

of his Facebook timeline; (3) database research of his “living

situation”; (4) aerial and street-view imagery of his home; (5)

telephone numbers of Mr. Wall’s housemates and an offer to

contact them to “obtain additional information pertaining to the

claimant” but no allegation that they were contacted; (6)

research into whether Mr. Wall owns a motor vehicle registered

in the District of Columbia; (7) research into cruise dates

based on Mr. Wall’s travel blog and an offer to monitor the

travel blog; (8) a three-day surveillance “action plan” but no

allegation that the surveillance took place; (9) review of Mr.

Wall’s “Flight Memory profile, YouTube channel, Flickr

photosharing website . . . , Craisglist, Recyclyer, Penny Saver,

Oodle, ‘and numerous additional classified listing websites.’”

Id. at 22-23.

The United States Court of Appeals for the Ninth Circuit

has held that a certain state common law claim for invasion of

privacy was not preempted by ERISA. In Dishman v. UNUM Life Ins.

Co., 269 F.3d 974 (9th Cir. 2001), Mr. Dishman “successfully

applied for long-term disability benefits” and received them

from November 1993 until July 1995” when they were terminated

after UNUM “hired several private investigative agencies to do a

‘work and sports [sic] check’ on him.” Id. at 977-78. Mr. Disham

alleged that “UNUM was vicariously liable for the tortious

27
invasion of privacy committed by the investigative firms it

hired,” alleging

that an investigator retained by UNUM elicited
information about his employment status by
falsely claiming to be a bank loan officer
endeavoring to verify information he had
supplied; that investigators elicited
personal information about him from neighbors
and acquaintances by representing that he had
volunteered to coach a basketball team; that
investigators sought and obtained personal
credit card information and travel itineraries
by impersonating him; that investigators
falsely identified themselves when caught
photographing his residence; and that
investigators repeatedly called his residence
and either hung up or else dunned the person
answering for information about him.

Id. at 979-98. The Court reasoned that “[Mr.] Dishman is not

seeking to obtain through a tort remedy that which he could not

obtain through ERISA [because] his damages for invasion of

privacy remain whether or not UNUM ultimately pays his claim.”

The Court further reasoned that

The fact that the conduct at issue allegedly
occurred “in the course of UNUM's
administration of the plan” does not create a
relationship sufficient to warrant
preemption. If that were the case, a plan
administrator could “investigate” a claim in
all manner of tortious ways with impunity.
What if one of UNUM's investigators had
accidentally rear-ended Dishman's car while
surveiling him? Would the fact that the
surveillance was intended to shed light on his
claim shield UNUM and the investigator from
liability? What if UNUM had tapped Dishman's
phone, put a tracer on his car, or trained a
video camera into his bedroom in an effort to
obtain information? Must that be tolerated

28
 simply because it is done purportedly in
furtherance of plan administration? To ask the
question is to answer it. Though there is
clearly some relationship between the conduct
alleged and the administration of the plan, it
is not enough of a relationship to warrant
preemption. We are certain that the objective
of Congress in crafting Section 1144(a) was
not to provide ERISA administrators with
blanket immunity from garden variety torts
which only peripherally impact daily plan
administration.

Id. at 984. Whether a claim for invasion of privacy is pre-

empted by ERISA appears to be a matter of first impression in

this circuit. The Court need not reach that question, however,

because even if such a claim was not pre-empted, the conduct

alleged by Mr. Wall does not state a claim for invasion of

privacy.

Under District of Columbia law, the tort of invasion of

privacy—intrusion upon seclusion—has three elements: “(1) an

invasion or interference by physical intrusion, by use of a

defendant's sense of sight or hearing, or by use of some other

form of investigation or examination; (2) into a place where the

plaintiff has secluded himself, or into his private or secret

concerns; (3) that would be highly offensive to an ordinary,

reasonable person.” Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C.

1989) (citations and internal citations omitted). Mr. Wall’s

allegations describe an investigation based on publicly

available information, much of which Mr. Wall himself made

29
publicly available, such as his YouTube channel, Facetime

timeline and his travel blog. “This tort was not created to

protect against the invasions alleged in this case—the garnering

of information from third parties, and the culling of facts from

public records.” Id. at 1218. Furthermore, the conduct alleged

does not amount to conduct that is “highly offensive to an

ordinary, reasonable person” because the information was

gathered from publicly-available information, including

information that Mr. Wall himself made publicly available. Mr.

Wall does not allege that his roommates were contacted, nor that

the surveillance plan was implemented.

Plaintiff has presented no authority supporting a common

law cause of action for “harassment” based on the allegations in

the Amended Complaint, and the Court is aware of none.

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is DENIED as to his claims for harassment and invasion

of privacy as those claims would not withstand a motion to

dismiss.

5. Count VII: Medical Malpractice Against Dr.
Brodner and Dr. Jiva

Mr. Wall asserts medical malpractice claims against Dr.

Brodner and Dr. Jiva, incorporating the allegations supra

Section III.B.2, and further alleges that neither doctor has

expertise in sleep disorders, and that they committed medical

30
malpractice in “fail[ing] to make a good-faith effort to

understand a patient’s ‘invisible diseases.’” Am. Compl., ECF

No. 21 at 59. Mr. Wall alleges that Dr. Brodner practices in

Florida and that Dr. Jiva practices in New York. Id. at 61.

Florida state law requires compliance with pre-suit

requirements for investigation, corroboration, and written

notice of a medical malpractice claim, see Largie v. Gregorian,

913 So.2d 635 (Fla. 3d DCA 2005); none of which Mr. Wall alleges

he has complied with, see generally Am. Compl., ECF No. 21.

“Florida law mandates the dismissal of a claim for medical

malpractice when the pre-suit requirements have not been

fulfilled.” Johnson v. McNeil, 278 F. App’x 866, 872 (11th Cir.

2008) (per curiam) (citation omitted) (noting that “the claimant

may cure the default and proceed with the suit as long as the

pre-suit requirements are fulfilled within the applicable

statute of limitations”).

Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is DENIED as to the medical malpractice claim against

Dr. Brodner as that claim would not survive a motion to dismiss

at this time.

To establish a prima facie case of medical malpractice

under New York State law, a plaintiff must allege “‘(1) the

standard of care in the locality where the treatment occurred,

(2) that the defendant[s] breached that standard of care, and

31
(3) that the breach of the standard was the proximate cause of

injury.’” Deadwyler v. North Shore Univ. Hosp. at Plainview, 55

A.D.3d 780, 781, 866 N.Y.S.2d 306 (quoting Berger v. Becker, 272

A.D.2d 565, 565, 709 N.Y.S.2d 418).

As instructed by the D.C. Circuit, the Court asks if the

common law medical malpractice claim “conflicts with the

provisions of ERISA or operates to frustrate its objects.”

VanderKam, 776 F.3d at 890. The Court concludes that it does

not. First, the claim does not conflict with ERISA’s civil

enforcement provision because this claim is not related to the

denial of benefits, but rather alleges that Dr. Jiva’s conduct

breached the applicable standard of care. Second, the claim does

not “duplicate[], supplement[], [n]or supplant[] the ERISA civil

enforcement remedy,” 542 U.S. at 209; because it does not ask

the Court to review the manner in which the termination decision

was made, but rather to determine whether Dr. Jiva’s conduct

breached the applicable standard of care. Accordingly, this

claim does not “conflict[] with the clear congressional intent

to make the ERISA remedy exclusive.” Davila, 542 U.S. at 209;

see also Edelen v. Osterman, 943 F. Supp. 75, 76 (D.D.C. 1996)

(holding that medical malpractice claim “has too tenuous a

relationship to an employee benefits plan to support a finding

of preemption”).

32
 Accordingly, Mr. Wall’s Motion for Leave to File an Amended

Complaint is GRANTED as to the medical malpractice claim against

Dr. Jiva.

IV. Conclusion

For the reasons explained above, the Motion for Leave to

File an Amended Complaint is GRANTED IN PART and DENIED IN PART.

Mr. Wall may proceed on his ERISA claims for: (1) interest on

the six months of withheld benefits; (2) clarification of his

right to future benefits; and (3) enforcing his rights under the

plan; and on his medical malpractice claim against Dr. Jiva. All

other claims are DISMISSED. An appropriate Order accompanies

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
June 1, 2021

33