The opinion of the court was delivered by: Fogel, District Judge.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
Defendant Cigna Healthcare of California ("Cigna") moves for
dismissal of Plaintiff's complaint. Plaintiff Jeffrey Van Hulle
("Van Hulle") opposes the motion and alternatively asks the Court
for leave to amend his complaint in order to assert a cause of
action under the Employment Retirement Income Securities Act
("ERISA"). The Court has read the moving and responding papers
and has considered the oral arguments of counsel. For the reasons
set forth below, Cigna's motion to dismiss will be granted
without leave to amend as to Van Hulle's claims under the
American with Disability Act ("ADA")*fn1 and with leave to amend
as to Van Hulle's proposed ERISA claim.
The complaint asserts that Defendants Cigna, Prudential
Healthcare, and Pacific Telesis violated the ADA. Van Hulle works
for Pacific Telesis, which contracted with Cigna and Prudential
Healthcare for administration of its employee insurance health
benefits. Van Hulle alleges that Defendants administered the
insurance policy in a discriminatory manner by refusing him
services and treating him differently because of his disability.
Specifically, the complaint alleges, inter alia, that Cigna
repeatedly delayed paying Van Hulle's claims and otherwise denied
him benefits provided by the insurance policy. Van Hulle further
alleges that Defendants retaliated against him for filing a
charge of discrimination against them with the Equal Employment
Opportunity Commission ("EEOC"). Van Hulle now asserts two
distinct theories of liability under the ADA: (1) discrimination
and failure to modify policies and procedures by a place of
public accommodation in violation of 42 U.S.C. § 12182 ("Title
III" or "Subchapter III"); and (2) retaliation in violation of
42 U.S.C. § 12203.*fn2 Cigna contends that the claims asserted
against it should be dismissed because Cigna does not fall within
the ambit of the ADA as an "employer" under Subchapter I or as "a
place of public accommodation" under Subchapter III.*fn3
Generally, the issue to be decided on a motion to dismiss is
not whether a plaintiff's claims have merit but whether the
moving defendant has shown beyond doubt that the plaintiff can
prove no set of facts entitling him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
The Court's review is limited to the face of the complaint,
documents referenced by the complaint and matters of which the
court may take judicial notice. Levine v. Diamanthuset, Inc.,
950 F.2d 1478, 1483 (9th Cir. 1991); In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996); MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Ordinarily,
a complaint may be dismissed as a matter of law for only two
reasons: (1) lack of a cognizable legal theory or (2)
insufficient facts under a cognizable legal theory. Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)
(citing 2A J. Moore, Moore's Fed. Practice ¶ 12.08 at 2271
(2d ed. 1982)). When a court considers a motion to dismiss, all
allegations of the complaint are construed in the plaintiff's
favor. Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191
(9th Cir. 1987). For a motion to dismiss to be granted, it must
appear to a certainty that the plaintiff would not be entitled to
relief under any set of facts that could be proved. Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987).
Subchapter III of the ADA expressly provides that "[n]o
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public
accommodation." 42 U.S.C. § 12182(a). The threshold issue is
whether an insurance provider such as Cigna is a place of public
accommodation within the meaning of Subchapter III. The Ninth
Circuit addressed precisely this issue in Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
In Weyer, an employee alleged, inter alia, that the
employer-provided insurance carrier violated Subchapter III of
the ADA because it provided greater benefits for persons with
physical disabilities than for persons with mental disabilities.
Id. The court agreed with the plaintiff that an insurance
office is a public accommodation as expressly set forth in §
12181(7), but also concluded that the term "place of public
accommodation" requires a "connection between the good or service
complained of and an actual physical place." Id. at 1114
(citation omitted).*fn5 The court thus went on to hold that
the benefit plan itself is not a good or service offered by a
place of public accommodation, Id. at 1115 (citing, Parker v.
Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)
(en banc)), and that therefore an insurance company in its
capacity as administrator of an employer-provided insurance plan
is not a "place of public accommodation" within the meaning of
Subchapter III. Id. [citing, Parker, 121 F.3d at 1010 ("A
benefit plan offered by an employer is not a good offered by a
place of public accommodation."); Ford v. Schering-Plough
Corp., 145 F.3d 601 (3rd Cir. 1998) (same)]; see also, Chabner
v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000).
Based on the facts alleged here, Ninth Circuit precedent
clearly precludes Van Hulle's Subchapter III claim against Cigna.
The relationship between Van Hulle and Cigna came about only
because Van Hulle's employer, Pacific Telesis, contracted with
Cigna for the provision of health insurance benefits to Pacific
Telesis employees. In its capacity as an employer-provided
insurance carrier, Cigna is not a "place of public accommodation"
under Subchapter III. Accordingly, Van Hulle's Subchapter III
claim against Cigna will be dismissed without leave to amend.
The ADA prohibits discrimination in three areas: employment
("Subchapter I"); public services ("Subchapter II"); and public
accommodations ("Subchapter III"). Subchapter IV sets forth
miscellaneous provisions, some of which apply to each of the
proceeding subchapters. See, e.g., 42 U.S.C. § 12202, 12205,
12203. The retaliation ...