MSP Recovery Claims, Series LLC v. Metropolitan General Insurance Company ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11547
____________________
MSP RECOVERY CLAIMS, SERIES LLC,
MSPA CLAIMS 1, LLC,
MAO-MSO RECOVERY II LLC, SERIES PMPI,
a segregated series of MAO-MSO II LLC,
Plaintiffs-Appellants,
versus
METROPOLITAN GENERAL INSURANCE COMPANY,
METROPOLITAN CASUALTY INSURANCE COMPANY,
METROPOLITAN GROUP PROPERTY & CASUALTY
INSURANCE COMPANY,
METLIFE AUTO & HOME GROUP,
METROPOLITAN P&C INSURANCE COMPANY,
Defendants-Appellees.
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2 Opinion of the Court 21-11547
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24052-RNS
____________________
Before JORDAN, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
This appeal involves claims brought under the private cause
of action provided for by the Medicare Secondary Payer Act. Var-
ious actors in the Medicare Advantage program assigned claims for
failure to pay or reimburse medical expenses owed under the Med-
icare Secondary Payer Act to Plaintiffs—MSP Recovery Claims, Se-
ries LLC; MSPA Claims 1, LLC; and MAO-MSO Recovery II LLC,
Series PMPI, (collectively, “MSP Recovery”). MSP Recovery then
asserted those claims against Metropolitan General Insurance
Company, Metropolitan Casualty Insurance Company, Metropoli-
tan Group Property & Casualty Insurance Company, Metlife Auto
& Home Group, and Metropolitan P&C Insurance Company (col-
lectively, “Defendants”).
The district court dismissed MSP Recovery’s claims because
the complaint failed to show that Defendants had a “demonstrated
responsibility” to reimburse MSP Recovery’s assignors for the
medical expenses at issue. This appeal asks us to determine
whether MSP Recovery’s complaint plausibly alleged that
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21-11547 Opinion of the Court 3
Defendants had a demonstrated responsibility to pay the claims.
After careful review, and with the benefit of oral argument, we re-
verse the district court’s decision and remand for further proceed-
ings.
I. BACKGROUND
Because this appeal concerns the Medicare Secondary Payer
Act, we summarize the Act before addressing MSP Recovery’s
claims.
A. Statutory Framework
Traditional Medicare consists of Parts A and B—the fee-for-
service provisions entitling recipients to have Centers for Medicare
& Medicaid Services (“CMS”) pay providers directly for their med-
ical care. See 42 U.S.C. §§ 1395c to 1395i-6, 1395j to 1395w-6.
Part C is the Medicare Advantage program, under which Medicare-
eligible persons may elect to have a private insurer of the enrollee’s
choice provide Medicare benefits. See id. §§ 1395w-21 to 1395w-
28. The insurance companies that provide Medicare benefits under
the Medicare Advantage program are called Medicare Advantage
Organizations (“MAOs”). 1 See id. § 1395w-28. Part D provides
prescription drug coverage, and Part E contains definitions and
1 The Medicare Advantage program was formerly known as the Medi-
care+Choice program. Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832
F.3d 1229, 1235 n.2 (11th Cir. 2016).
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4 Opinion of the Court 21-11547
exclusions. One such exclusion is the Medicare Second Payer Act.
Id. § 1395y(b).
The Medicare Secondary Payer Act (the “MSP Act”) was en-
acted in 1980 to reduce the costs of Medicare. Glover v. Liggett
Grp., Inc., 459 F.3d 1304, 1306 (11th Cir. 2006). More than one in-
surer is often liable for an individual’s medical costs. Humana Med.
Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229, 1233 (11th Cir.
2016). For example, a car accident victim who is covered by Med-
icare may also be entitled to recover medical expenses under both
his own health insurance and the tortfeasor’s car insurance policies.
To address this overlap in coverage, the MSP Act allocates liability
between Medicare and other insurers. See id. The MSP Act uses
the term “primary plan” to describe entities with a primary respon-
sibility to pay and defines the term broadly to include “an automo-
bile or liability insurance policy or plan (including a self-insured
plan) or no fault insurance.” 42 U.S.C. § 1395y(b)(2)(A).
Before the MSP Act went into effect, “Medicare often acted
as a primary insurer; that is, Medicare paid for enrollees’ medical
expenses, even when an enrollee carried other insurance that cov-
ered the same costs, or when a third party had an obligation to pay
for them.” MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351,
1354–55 (11th Cir. 2016). As its name suggests, the Medicare Sec-
ondary Payer Act was enacted to ensure Medicare acts as a second-
ary payer. “This means that if payment for covered services has
been or is reasonably expected to be made by someone else,
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21-11547 Opinion of the Court 5
Medicare does not have to pay.” Id. at 1355 (quoting Cochran v.
U.S. Health Care Fin. Admin., 291 F.3d 775, 777 (11th Cir. 2002)).
In fact, the MSP Act prohibits Medicare from paying for
items or services if “payment has been made or can reasonably be
expected to be made under . . . an automobile or liability insurance
policy or plan (including a self-insured plan) or under no fault in-
surance.” 42 U.S.C. § 1395y(b)(2)(A)(ii). But if a primary plan “has
not made or cannot reasonably be expected to make payment with
respect to [the] item or service promptly,” Medicare may make the
initial payment, “conditioned on reimbursement” from the pri-
mary plan. Id. § 1395y(b)(2)(B)(i). A primary plan must reimburse
Medicare for these conditional payments “if it is demonstrated that
such primary plan has or had a responsibility to make payment
with respect to such item or service.” Id. § 1395y(b)(2)(B)(ii). We
refer to this mandate as the “demonstrated responsibility require-
ment.” A primary plan’s responsibility for payment may be shown
by:
a judgment, a payment conditioned upon the recipi-
ent’s compromise, waiver, or release (whether or not
there is a determination or admission of liability) of
payment for items or services included in a claim
against the primary plan or the primary plan’s in-
sured, or by other means.
Id.
To facilitate recovery of conditional payments, Congress
created government and private causes of action for double
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6 Opinion of the Court 21-11547
damages against primary plans that fail to provide primary pay-
ment or appropriate reimbursement. See id. §§ 1395y(b)(2)(B)(iii),
(b)(3)(A). The private cause of action provision provides:
There is established a private cause of action for dam-
ages (which shall be in an amount double the amount
otherwise provided) in the case of a primary plan
which fails to provide for primary payment (or appro-
priate reimbursement) in accordance with [its pri-
mary payment obligations].
Id. § 1395y(b)(3)(A). We have held that the demonstrated respon-
sibility requirement is a prerequisite to pursuing this private cause
of action—a primary plan’s responsibility to pay or reimburse Med-
icare must have been demonstrated in some way before a private
plaintiff can sue. Glover, 459 F.3d at 1309; Allstate, 835 F.3d at
1359.
With this statutory framework in mind, we turn to the fac-
tual and procedural background of the case.
B. Factual and Procedural Background
The MSP Recovery entities are “collection agencies that spe-
cialize in recovering funds on behalf of various actors in the Medi-
care Advantage system.” See MSP Recovery Claims, Series LLC v.
ACE Am. Ins. Co., 974 F.3d 1305, 1308 (11th Cir. 2020), cert. de-
nied, 141 S. Ct. 2758 (2021). Defendants offer automobile insur-
ance policies that contain no-fault and medical payments coverage
for automobile accident-related medical expenses and liability in-
surance policies.
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21-11547 Opinion of the Court 7
MSP Recovery filed the instant class action complaint2 “on
behalf of themselves and all others similarly situated.” Among
other causes of action, MSP Recovery sued Defendants on behalf
of themselves and similarly situated entities under the MSP Act’s
private cause of action provision. The complaint alleged that De-
fendants are “primary plans” with primary “obligation[s] to pay for
accident-related medical expenses on behalf of [e]nrollees.” But,
according to MSP Recovery, Defendants “systematically failed to
make these payments and reimbursements.” As a result, MAOs
and other downstream actors paid for the relevant accident-related
medical expenses and were entitled to, but did not receive, reim-
bursement from Defendants under the Act. These entities, which
we will refer to collectively as MAOs, assigned their claims to MSP
Recovery.
MSP Recovery alleged that Defendants had a demonstrated
responsibility to reimburse the MAOs in one of two circumstances:
(1) where Defendants were contractually obligated to pay for en-
rollees’ accident-related medical expenses under “no-fault” cover-
age liability policies, or (2) where Defendants entered into settle-
ment agreements with enrollees as a result of claims arising under
Defendants’ liability insurance policies.
2 After filing its initial complaint, MSP Recovery amended the initial complaint
under Federal Rule of Civil Procedure 15(a)(1)(A). We refer to the operative
amended complaint as “the complaint” for ease of reference.
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8 Opinion of the Court 21-11547
According to MSP Recovery, it “identified numerous in-
stances where Defendants admitted, by reporting to CMS, that
they were obligated (pursuant to no-fault and other liability poli-
cies) to provide primary payment on behalf of [e]nrollees.” “And
in those instances where Defendants reported themselves respon-
sible pursuant to ‘other liability’ policies, they did so as a result of
entering into settlement agreements with the Medicare beneficiary
at issue.” But the complaint itself did not specify these instances.
Instead, MSP Recovery attached a “sample list of these instances”
to the complaint in “Exhibit A.”
Exhibit A contained hundreds of claims assigned to MSP Re-
covery. The complaint alleged that MSP Recovery’s assignors
made conditional payments on behalf of each of these claims and
that each payment was “subject to overlapping primary coverage
from the Defendants.” Exhibit A included the following infor-
mation in connection with each of these claims: (1) the beneficiary,
identified by the MSP Recovery Member ID; (2) the MSP Recovery
assignor that made the conditional payment; (3) the plan with pri-
mary responsibility to pay; (4) the insurance policy number; and (5)
whether the primary payment obligation arose as a result of a con-
tractual obligation or settlement.
The complaint alleged that MSP Recovery identified the
claims in Exhibit A by comparing their assignor’s claims data
against two sets of documents: (1) “Defendants’ filings with CMS
under 42 U.S.C. § 1395y(b)(7)–(9), which obligates insurers like De-
fendants to report the claims for which they are primary payers”;
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21-11547 Opinion of the Court 9
and (2) “certain of Defendants’ reported settlements to which [MSP
Recovery] had access.” (emphasis omitted). MSP Recovery further
alleged that Exhibit A “is not complete, and discovery is needed to
fully identify the scope of claims, beneficiaries, amounts, and as-
signors in this case.”
Defendants moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6), arguing, among other things, that
MSP Recovery failed to plausibly allege that Defendants had a
demonstrated responsibility to pay the alleged claims under the
Act. MSP Recovery opposed Defendants’ motion and, in the alter-
native, requested leave to amend.
The district court granted Defendants’ motion to dismiss be-
cause it found MSP Recovery failed to sufficiently plead that De-
fendants had a demonstrated responsibility to pay the alleged
claims. Specifically, the district court concluded that (1) it was in-
sufficient for MSP Recovery to include its factual allegations in an
exhibit, rather than the complaint itself, and (2) the facts alleged in
the complaint were insufficient to survive Defendants’ motion to
dismiss.
As to the inclusion of Exhibit A, the district court cited its
recent decision in MSP Recovery Claims, Series LLC v. Amerisure
Insurance Company, in which it held that an exhibit attached to a
complaint “may not serve as a substitute for factual allegations.”
No. 17-23961-CIV, 2021 WL 358670, at *3 (S.D. Fla. Feb. 1, 2021).
There, the district court stated that it was not enough for an exhibit
attached to a complaint to contain exemplars; the complaint itself
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10 Opinion of the Court 21-11547
had to contain at least “an instance” or “representative example” of
the plaintiff’s alleged injury. Id. The district court held that MSP
Recovery’s complaint in this action “suffer[ed] from similar plead-
ing deficiencies” and that these deficiencies were “fatal to [MSP Re-
covery’s] claims.” As to the adequacy of MSP Recovery’s factual
allegations, the district court found that the complaint was “com-
pletely devoid of non-conclusory factual allegations that would al-
low the [c]ourt or the Defendants to determine whether [MSP Re-
covery] ha[d] stated cognizable claims under the MSP [Act], specif-
ically whether [MSP Recovery] ha[d] ‘demonstrated’ a responsibil-
ity by any of the Defendants to make payments under the MSP
[Act].” The district court also denied MSP Recovery’s request for
leave to amend, reasoning that the request was “inserted, as an af-
terthought, at the end of their opposition to the Defendants’ mo-
tion” and was thus “procedurally defective and lacking in substan-
tive support.”
MSP Recovery filed a motion for reconsideration, which
also requested leave to file a second amended complaint. The dis-
trict court denied MSP Recovery’s motion. This timely appeal fol-
lowed. 3
3MSP Recovery appealed both the dismissal order and the order denying its
motion for reconsideration. Because we find that the district court erred in
dismissing MSP Recovery’s claims, however, we need not address MSP Re-
covery’s arguments related to its motion for reconsideration.
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II. STANDARD OF REVIEW
We review de novo an order dismissing a complaint under
Rule 12(b)(6) accepting all well-pleaded allegations as true and con-
struing the allegations in the light most favorable to the plaintiff.
Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1312
(11th Cir. 2015).
III. ANALYSIS
On appeal, MSP Recovery contends that the district court
erred in dismissing its complaint because the complaint sufficiently
alleged the elements for a private cause of action under the MSP
Act, including that Defendants had a demonstrated responsibility
to pay its claims. Defendants assert, however, that dismissal was
warranted because the two-dismissal rule of Fed. R. Civ. P.
41(a)(1)(B) bars this case. 4 Defendants also argue that dismissal was
proper, as to two of the Defendants, because the district court
lacked personal jurisdiction over them.
4 Rule 41(a)(1)(A) allows a plaintiff to “dismiss an action without a court order”
either by filing “a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment” or by stipulation of the parties
who have appeared in the case. “Unless the notice or stipulation states other-
wise, the dismissal [will be] without prejudice,” except “[i]f the plaintiff previ-
ously dismissed any federal- or state-court action based on or including the
same claim.” Fed. R. Civ. P. 41(a)(1)(B). In that case, a notice of dismissal
operates as an adjudication on the merits.” Id.USCA11 Case: 21-11547 Date Filed: 07/18/2022 Page: 12 of 27
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Our analysis of the parties’ arguments proceeds in two parts.
First, we consider whether the district court erred in dismissing
MSP Recovery’s complaint for failure to state a claim under the
MSP Act. Then, we consider Defendants’ alternative arguments in
support of dismissal.
“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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). At the motion to dismiss stage, “all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are con-
strued in the light most favorable to the plaintiff.” Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). Of course,
“[t]hreadbare recitals of the elements of a cause of action, sup-
ported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
“Though the MSP Act as a whole is ‘remarkably abstruse,’
the private cause of action is remarkably simple.” MSPA Claims 1,
LLC v. Tenet Fla., Inc., 918 F.3d 1312, 1320 (11th Cir. 2019) (quot-
ing Allstate, 835 F.3d at 1358). As explained above, the private
cause of action allows plaintiffs to recover double damages “in the
case of a primary plan which fails to provide for primary payment
[]or appropriate reimbursement” of conditional payments made by
a secondary payer. § 1395y(b)(3)(A).
This Court has distilled the § 1395y(b)(3)(A) private cause of
action into three elements. A plaintiff must plead: “(1) the
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21-11547 Opinion of the Court 13
defendant’s status as a primary plan; (2) the defendant’s failure to
provide for primary payment or appropriate reimbursement; and
(3) the damages amount.” Humana, 832 F.3d at 1239.
Only the second element—the defendant’s failure to provide
for primary payment or appropriate reimbursement—is at issue in
this appeal. As for that element, “the would-be primary payer’s re-
sponsibility must be ‘demonstrated’ in some way prior to the suit
for reimbursement.” MSPA Claims 1, LLC v. Kingsway Amigo Ins.
Co., 950 F.3d 764, 771 (11th Cir. 2020). “Until Defendants’ respon-
sibility to pay for a Medicare beneficiary’s expenses has been
demonstrated . . . , Defendants’ obligation to reimburse Medicare
does not exist,” and “it cannot be said that Defendants have ‘failed’
to provide appropriate reimbursement.” Glover, 459 F.3d at 1309.
Here, the district court dismissed MSP Recovery’s com-
plaint for failing to plausibly allege Defendants had a demonstrated
responsibility to pay its claims. According to the district court, Ex-
hibit A could not “serve as a substitute for factual allegations.” Ad-
ditionally, the district court reasoned that the complaint did not in-
clude any facts “related to any enrollee, the amount charged to
[MSP Recovery’s] assignors or amounts they supposedly paid,
what exactly such payments were for, what treatment was pro-
vided, what exactly was supposedly covered and not paid by De-
fendants, or what coverage determinations were made by the De-
fendants.” “Absent such information,” the district court concluded
that the complaint failed “to state cognizable claims.”
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14 Opinion of the Court 21-11547
On appeal, MSP Recovery argues that the district court
erred by refusing to consider Exhibit A as part of the complaint and
that the complaint, including Exhibit A, stated a claim for relief un-
der the MSP Act. In response, Defendants assert that the district
court correctly refused to consider Exhibit A and that their contrac-
tual obligations, settlements with beneficiaries, and self-reporting
to CMS are insufficient to demonstrate responsibility to pay. We
consider these issues in turn.
1. The district court erred in failing to consider Exhibit A to
the complaint
“In deciding whether a complaint states a claim upon which
relief may be granted, we normally consider all documents that are
attached to the complaint or incorporated into it by reference.”
Gill ex rel. K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019). “The
Civil Rules [of Procedure] provide that an attachment to a com-
plaint generally becomes ‘part of the pleading for all purposes,’ Fed.
R. Civ. P. 10(c), including for ruling on a motion to dismiss.” Id.(collecting cases).
Here, the district court found that it would not consider Ex-
hibit A, which was attached to and referenced by incorporation in
the factual allegations of MSP Recovery’s complaint. Because
“documents attached to a complaint or incorporated in the com-
plaint by reference can generally be considered by a federal court
in ruling on a motion to dismiss under Rule 12(b)(6),” Saunders v
Duke, 766 F.3d 1262, 1270 (11th Cir. 2014), we conclude that the
district court erred in failing to consider whether the complaint and
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21-11547 Opinion of the Court 15
Exhibit A, taken together, plausibly alleged that Defendants’ re-
sponsibility to pay had been demonstrated prior to suit. See Hu-
mana, 832 F.3d at 1239.
We now turn to address whether the complaint and Ex-
hibit A taken together plausibly allege that Defendants had a
demonstrated responsibility to pay.
2. The demonstrated responsibility standard
As noted, the MSP Act requires a primary plan to reimburse
Medicare only “if it is demonstrated that such primary plan has or
had a responsibility to make payment with respect to such item or
service.” § 1395y(b)(2)(B)(ii); see, e.g., Glover, 459 F.3d at 1308(emphasis omitted); Allstate, 835 F.3d at 1359. And we have ex-
plained that “primary payers must have [at least constructive]
knowledge that they owed a primary payment before a party can
claim double damages under the Medicare Secondary Payer Act.”
ACE, 974 F.3d at 1319.
Plaintiffs can show a primary plan’s responsibility to pay has
been demonstrated by “a judgment, a payment conditioned upon
the recipient’s compromise, waiver, or release (whether or not
there is a determination or admission of liability) of payment for
items or services included in a claim against the primary plan or the
primary plan’s insured, or by other means.” § 1395y(b)(2)(B)(ii)
(emphasis added). Our precedent establishes that these “other
means” include showing that the primary plan had a contractual
obligation to pay or showing that the primary plan entered into a
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16 Opinion of the Court 21-11547
settlement agreement with a beneficiary. ACE, 974 F.3d at 1309,
1319–20.
In Allstate, we held that “a plaintiff suing a primary plan un-
der the private cause of action in the MSP Act may satisfy the
demonstrated responsibility prerequisite by alleging the existence
of a contractual obligation to pay.” 835 F.3d at 1362–63. Defend-
ants contend that the following language from Allstate requires
that, to survive a motion to dismiss, plaintiffs must also allege ad-
ditional facts showing the contractual obligation “actually render[s]
them primarily responsible for the expenses at issue”:
[Our holding] does not relieve Plaintiffs of their bur-
den to allege in their complaints, and then subse-
quently prove with evidence, that Defendants’ valid
insurance contracts actually render Defendants re-
sponsible for primary payment of the expenses Plain-
tiffs seek to recover. And Defendants may still assert
any valid contract defense in arguing against their lia-
bility. We hold only that a contractual obligation
may satisfy the demonstrated responsibility require-
ment, not that the existence of a contractual obliga-
tion conclusively demonstrates liability under the
MSP Act’s private cause of action.
Id. at 1361. But this language merely says that, while it is sufficient
at the motion to dismiss stage to allege there is a contractual obli-
gation that renders Defendants “responsible for primary payment
of the expenses” at issue, plaintiffs will need to later present evi-
dence in support of that allegation.
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As to settlement agreements, we have held that a defend-
ant’s settlement agreement with a beneficiary can be used to
demonstrate responsibility to pay, and knowledge of it. See King-
sway, 950 F.3d at 772 (“[Plaintiff] alleges that [defendant’s] respon-
sibility has been ‘demonstrated’ by its settlement of the underlying
personal-injury suit . . . . [B]ased on our precedent interpreting the
private cause of action, [plaintiff] seems to have done everything it
needed to do.”); ACE, 974 F.3d at 1319 (“Defendants’ settlement
agreements with beneficiaries show, at a minimum, that Defend-
ants had constructive knowledge that they owed the primary pay-
ments.”).
And finally, as to defendants’ knowledge of their responsibil-
ity to pay, this Court has determined that defendants’ CMS filings 5
“evidence [d]efendants’ knowledge that they owed primary pay-
ments.” ACE, 974 F.3d at 1319. The MSP Act requires certain
kinds of insurance plans—including liability and no-fault insurance
plans, 42 U.S.C. § 1395y(b)(8)(F)—to “determine whether a claim-
ant (including an individual whose claim is unresolved) is entitled
to benefits under the program under this subchapter on any basis,”
including the Medicare Advantage program. Id.
§ 1395y(b)(8)(A)(i). If the plan determines that the claimant is so
entitled, the statute requires that the plan submit a report to the
Secretary of the Department of Health and Human Services. Id.
5 In ACE, this Court referred to the filings required by
42 U.S.C. § 1395y(b)(7)–
(9) as “HHS” filings. 974 F.3d at 1319. We use the term “CMS” filings to refer
to the same reports to follow the language used by the district court.
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18 Opinion of the Court 21-11547
§ 1395y(b)(8)(A)(ii). This report “shall be submitted . . . within a
time specified by the Secretary after the claim is resolved through
a settlement, judgment, award, or other payment (regardless of
whether or not there is a determination or admission of liability).”
Id. § 1395y(b)(8)(C). In other words, this provision “obligates in-
surers like Defendants to report the claims for which they are pri-
mary payers.” ACE, 974 F.3d at 1319. This Court in ACE explained
that these filings “evidence Defendants’ knowledge that they owed
primary payments.” Id.
In summary, to survive a motion to dismiss on Medicare
Secondary Payer Act claims, a plaintiff must plausibly allege that a
defendant’s responsibility to pay had been demonstrated before fil-
ing suit, and a defendant must have (at least constructively) known
of such obligation. A defendant’s responsibility can be shown in
many ways, including by having a contractual obligation to pay and
entering into a settlement agreement with a beneficiary for acci-
dent-related medical expenses. As to the knowledge requirement,
a defendant’s CMS filings evidence constructive knowledge that
the defendant owed primary payments.
With this background in mind, we turn to whether MSP Re-
covery’s complaint plausibly alleged Defendants had a demon-
strated responsibility to pay its claims.
MSP Recovery claims that Defendants were required, but
failed, to timely reimburse their assignors for conditional payments
made in connection with beneficiaries’ accident-related medical ex-
penses. The complaint alleged that MSP Recovery “identified
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21-11547 Opinion of the Court 19
numerous instances where Defendants admitted, by reporting to
CMS, that they were obligated (pursuant to no-fault and other lia-
bility policies) to provide primary payment on behalf of [e]nrol-
lees.” “And in those instances where Defendants reported them-
selves responsible pursuant to ‘other liability’ policies, they did so
as a result of entering into settlement agreements with the Medi-
care beneficiary at issue.”
On appeal, MSP Recovery argues that because those in-
stances were too numerous to allege in a complaint, MSP Recovery
attached Exhibit A to the complaint, which contained the following
information about each claim: (1) the beneficiary, identified by the
MSP Recovery Member ID; (2) the MSP Recovery assignor that
made the conditional payment; (3) the plan with primary responsi-
bility to pay; (4) the insurance policy number; and (5) whether the
primary payment obligation arose as a result of a contractual no-
fault obligation or settlement. MSP Recovery identified the claims
in Exhibit A by comparing their assignor’s claims data against De-
fendants’ filings with CMS, under 42 U.S.C. § 1395y(b)(7)–(9), and
“certain of Defendants’ reported settlements to which [MSP Re-
covery] had access.”
In other words, MSP Recovery alleged that Defendants had
contractual obligations and settlement agreements with beneficiar-
ies that made them responsible to pay for the claims listed in Ex-
hibit A, and that Defendants reported these obligations and settle-
ments to CMS. We hold that, at this stage, MSP Recovery’s allega-
tions “satisfy the demonstrated responsibility prerequisite.” See
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20 Opinion of the Court 21-11547
Allstate, 835 F.3d at 1362–63 (holding “that a plaintiff suing a pri-
mary plan under the private cause of action in the MSP Act may
satisfy the demonstrated responsibility prerequisite by alleging the
existence of a contractual obligation to pay. A judgment or settle-
ment from a separate proceeding is not necessary”); Kingsway, 950
F.3d at 772 (concluding that, when a plaintiff “allege[d] that [de-
fendant’s] responsibility has been ‘demonstrated’ by its settlement”
with beneficiaries, it “seem[ed] to have done everything it needed
to do” at the motion to dismiss stage); ACE, 974 F.3d at 1319 (con-
cluding that plaintiffs “plausibly alleged that Defendants had” ac-
tual or constructive knowledge of primary payer responsibility
where defendants had reported such responsibility to CMS under
§ 1395y(b)(7)–(9)).
We do not end our analysis here, however, as Defendants
argue that dismissal is still warranted even if MSP Recovery met
the demonstrated responsibility requirement. We address those
arguments in turn.
3. Defendants’ Alternative Arguments For Dismissal
First, Defendants argue that the two-dismissal rule of Rule
41(a)(1)(B) bars this case because MSP Recovery filed and voluntar-
ily dismissed two substantively identical complaints against De-
fendants “or their privies.” 6 MSP Recovery responds that, unlike
6 The two cases identified by defendants are: MSP Recovery Claims v. Metro-
politan Casualty Insurance Company, No. 17-cv-23982-KMW (S.D. Fla.), and
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21-11547 Opinion of the Court 21
this action, the cases cited by Defendants involved a single plain-
tiff—MSP Recovery Claims, LLC—and a single defendant—Metro-
politan Casualty Insurance Company, and involved “distinct fail-
ures to reimburse, deriving from distinct assignment agreements
from unrelated Medicare Advantage payors.”
Second, Defendants claim the district court lacked personal
jurisdiction over two of the Defendants because Metropolitan
Group Property and Casualty Insurance Company “does not write
insurance in Florida and does not have any automobile insurance
policies currently in force there,” and MetLife Auto & Home
Group does not even exist. MSP Recovery responds that Defend-
ants’ CMS reporting undermines their arguments, and any errors
in its naming of the Defendants was due to Defendants’ sloppy re-
porting to CMS.
The district court, however, did not address either of these
arguments. And we generally “will not consider issues which the
district court did not decide.” McKissick v. Busby, 936 F.2d 520,
522 (11th Cir. 1991); accord Nyland v. Moore, 216 F.3d 1264, 1267
(11th Cir. 2000). Because the district court did not address these
issues, we decline to do so here in the first instance. McKissick, 936
at 522; Nyland, 216 F.3d at 1267. On remand, the district court
should address, and make the factual findings necessary to
MSP Recovery Claims v. Metropolitan Casualty Insurance Company, No. 17-
cv-23825-DLG (S.D. Fla.).
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22 Opinion of the Court 21-11547
determine, whether it had personal jurisdiction over the Defend-
ants and whether this case is barred by Rule 41(a)(1)(B).
IV. CONCLUSION
For the reasons stated, we hold that at this procedural stage
MSP Recovery’s complaint plausibly alleged that Defendants had a
demonstrated responsibility to pay the claims, and we therefore re-
verse and remand this case to the district court for further proceed-
ings consistent with this opinion.
REVERSED AND REMANDED.
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21-11547 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, Concurring in the Judgment:
I agree that we should reverse, but my reasoning differs
from the majority’s. In my view, the district court correctly dis-
missed the plaintiffs’ complaint but erred in denying leave to
amend. I therefore concur in the judgment.
I’ll start with the sufficiency of the first amended complaint.
Our cases indicate that an insurer’s submission of reports to the
government about a claimant’s entitlement to Medicare benefits
constitutes “evidence” that the insurer knew that it “owed primary
payments” under the Medicare Secondary Payer Act, 42 U.S.C.
§ 1395y(b). See MSP Recovery Claims, Series LLC v. ACE Am. Ins.
Co., 974 F.3d 1305, 1319 (11th Cir. 2020). That background prin-
ciple should have made it fairly easy for the plaintiffs to have
drafted a complaint that satisfied Rule 8(a) and stated plausible
claims under Rule 12(b)(6).
As the majority notes, documents attached to and incorpo-
rated in a complaint must be considered in evaluating sufficiency
under Rule 12(b)(6). See, e.g., Gill ex rel. K.C.R. v. Judd, 941 F.3d
504, 511 (11th Cir. 2019). But context matters, and here Exhibit
A—the critical document attached to the first amended com-
plaint—was not a contract, agreement, claim, letter, or notice with
independent legal significance. It was, instead, a chart created by
the plaintiffs themselves containing entries for over 1,500 claims.
The plaintiffs made general allegations in their complaint that the
defendants had a demonstrated responsibility under the MSPA to
pay for a number of items or services for certain beneficiaries and
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2 JORDAN, J., Concurring 21-11547
then directed the reader to Exhibit A for all of the purported details
concerning the defendants’ alleged failures. See, e.g., D.E. 10 at ¶¶
55–56 & n. 9. In drafting their complaint the way they did, the
plaintiffs chose not to provide a single exemplar for any of their
claims.
Let’s assume that Exhibit A could theoretically make up for
the first amended complaint’s deficient factual allegations and lack
of detail. Even so, Exhibit A—which again contained over 1500
entries—failed to give the defendants “fair notice of what the . . .
claim[s] [were] and the grounds upon which [they] rest[ed].” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citation omitted). First, Exhibit A identified the benefi-
ciaries not by name, but by reference to MSP Recovery Member
IDs that the defendants would not be privy to or be able to check
or reference. Second, Exhibit A listed a “contract” or “plan” num-
ber for the beneficiary, but that number could have been a group
plan with many members. Third, Exhibit A provided the name and
address of the insurer for each beneficiary, but that information
would not have helped the defendants figure out what was being
alleged as to each beneficiary. Fourth, Exhibit A had a line item for
“insurance type,” such as “other liability insurance is primary,” but
without more that would have done little to apprise the defendants
of the details concerning their alleged liability under the MSPA.
Fifth, Exhibit A had a column for the MSP client/assignor at issue,
but again each client/assignor was listed not by name, but by an
MSP number not available to the defendants. To make matters
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21-11547 JORDAN, J., Concurring 3
worse, Exhibit A did not contain any dollar values for any of the
claims related to the beneficiaries. Nor did Exhibit A contain any
dates for any of the claims. These omissions made it even harder
to figure out what each defendant’s alleged liabilities were based
on.
Here, for example, is the very first entry on Exhibit A (with
the address of the defendant excluded for space reasons):
MSP Member Id Contract/Plan # Reporting Primary Payer Insurance Type MSP Client
5306294-BCBSRI 6963690070 Metropolitan Property & Casualty . . . . other liability insurance . . . BCBSRI-BCBSRI
How that entry (and others like it) provided fair notice to Metro-
politan Property and Casualty is beyond me. See Johnson v. City
of Shelby, 574 U.S. 10, 12 (2014) (explaining that a complaint is suf-
ficient when it “simply, concisely, and directly” sets out the matters
that entitle the plaintiffs to damages from the defendants); 5
Charles Alan Wright, Arthur R. Miller, and A. Benjamin Spencer,
Federal Practice and Procedure § 1216 (4th ed. 2021) (“The pleader
is entitled to considerable latitude regarding the mode of stating a
claim for relief, provided the pleading gives reasonable notice of
the claims that are being asserted.”).
In a footnote in their complaint, the plaintiffs explained that
“[a]dditional information regarding the Medicare beneficiaries ref-
erenced in Exhibit A will be made available to [the defendants]
upon request,” and that such information was “reserved” in order
to ensure protection of personal information in “accordance with
HIPAA.” D.E. 10 at ¶ 55 n.9. But that offer, however well-inten-
tioned, could not prop up a deficient complaint. The adequacy and
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4 JORDAN, J., Concurring 21-11547
sufficiency of a complaint is not determined based on whether the
plaintiffs are able to answer basic post-filing questions posed by the
defendants. As for the plaintiffs’ purported concern about HIPAA,
it was unfounded. In their proposed second amended complaint,
the plaintiffs set out a number of alleged exemplars and submitted
a new chart set containing the names of the beneficiaries and the
dates of occurrence or loss. See D.E. 39-1 at ¶¶ 54–59, 72–151; D.E.
39-3 (Ex. B to proposed second amended complaint). To avoid any
HIPAA problems, the proposed second amended complaint (which
would have been filed in the public record) contained redactions,
and presumably the unredacted version would have been filed un-
der seal and provided to the defendants. So the HIPAA concerns
noted in the first amended complaint were exaggerated and easily
resolved when the plaintiffs were faced with dismissal. See S.D.
Fla. Local Rule 5.4(b).
It seems to me that the plaintiffs, who are “collection agen-
cies” involved in a high-volume aspect of the Medicare industry,
see ACE, 974 F.3d at 1308, were testing the Rule 8(a)/Rule 12(b)(6)
waters to see what they could get away with in terms of pleading
detail. The less the plaintiffs have to do to draft a complaint and/or
its exhibits, the less they will spend on litigation, and the more they
stand to recover if they prevail on their claims. That might be a
good business model for the plaintiffs, but it is not one we should
countenance.
Because I conclude that the district court correctly dismissed
the plaintiffs’ first amended complaint, the next question is
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21-11547 JORDAN, J., Concurring 5
whether leave to amend should have been granted. For me, the
answer is yes.
The district court, citing to Newton v. Duke Energy Florida,
LLC, 895 F.3d 1270, 1277 (11th Cir. 2018), denied leave to amend
because the plaintiffs had included their request in their motion for
reconsideration. See D.E. 38 at 4–5. But a closer reading of New-
ton indicates that leave should have been granted. Although New-
ton reaffirmed the rule that a request for leave to amend is not
properly raised if embedded in a memorandum in opposition to a
motion to dismiss, it also explained that a plaintiff can seek leave to
amend in a motion under Rule 59(e) or a motion under Rule 60(b).
See Newton, 895 F.3d at 1277 (citing Almanza v. United Airlines,
Inc., 851 F.3d 1060, 1075 (11th Cir. 2017)). When the plaintiffs here
moved for reconsideration, they did so under Rule 59(e). See D.E.
39 at 3. As a result, their request for leave to amend was properly
filed.
As noted above, the proposed second amended complaint
contained several exemplars. It also set out the names of the ben-
eficiaries and the dates of occurrence or loss in a new chart. Those
changes largely remedied the pleading problems I’ve identified,
and as a result the proposed second amended complaint was not
legally futile. The plaintiffs should have been granted leave to file
it, and I would reverse and remand so that the defendants can re-
spond that that complaint as they see fit.