                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
JOSEPH D. AFRAM,              )
                              )
          Plaintiff,          )
                              )
          v.                  )      Civil Action No. 12-1389 (RWR)
                              )
UNITED FOOD AND COMMERCIAL    )
WORKERS UNIONS AND            )
PARTICIPATING EMPLOYERS       )
HEALTH AND WELFARE FUND,      )
et al.,                       )
                              )
          Defendants.         )
______________________________)

                           MEMORANDUM ORDER

     Plaintiff Joseph Afram, a surgeon, brings suit against the

medical benefits providers for patient G.B. alleging that they

failed to pay for medical services Afram provided to G.B.      The

defendants move to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim.

     A district court can dismiss a complaint under Rule 12(b)(6)

when the complaint “fail[s] to state a claim upon which relief

can be granted[.]”    Fed. R. Civ. P. 12(b)(6).     “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) (citations omitted) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).
                               - 2 -

     Although Afram’s complaint does not specify the cause of

action or statute that he alleges entitles him to relief, the

parties agree that Afram’s claim can be brought only under the

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1001 et seq.   See Defs.’ Mot. to Dismiss, Defs.’ Mem. in Supp.

of Mot. to Dismiss at 5; Pl.’s Opp’n to Mot. to Dismiss at 1.

Moreover, because Afram has standing to bring his claim under

ERISA,1 ERISA preempts any other state or common law cause of

action.   See 29 U.S.C. § 1144 (stating that ERISA supersedes “any

and all State laws insofar as they may now or hereafter relate to

any employee benefit plan”); see also Krooth & Altman v. N. Am.

Life Assur. Co., 134 F. Supp. 2d 96, 101 (D.D.C. 2001);

Psychiatric Institute of D.C., Inc. v. Wells, Civil Action No.

92-0416 (GHR), 1992 WL 237368, at *3 (D.D.C. Aug. 31, 1992).

     To bring a claim for benefits under ERISA, Afram must allege

that he is due benefits under the terms of G.B.’s plan and

“identify a specific plan term that confers the benefit in

question.”   Stewart v. Nat’l Educ. Ass’n, 404 F. Supp. 2d 122,

130 (D.D.C. 2005).   Afram’s complaint does not identify the plan


     1
       Afram brings suit against a health and welfare plan
governed by ERISA “and a firm with whom the Fund has contracted
to provide administrative management services.” Defs.’ Mot. to
Dismiss, Defs.’ Mem. in Supp. of Mot. to Dismiss at 1. G.B.
assigned Afram his medical benefits for the medical services
Afram provided. See Compl. (Health Insurance Claim Form) at 3.
Thus, Afram could have brought his claim “to recover benefits due
to him under the terms of [G.B.’s] plan” under ERISA Section
502(a)(1)(B). See 29 U.S.C. § 1132(a)(1)(B).
                                  - 3 -

term that entitles him to any benefit.    Thus, his complaint fails

to state a claim under ERISA, and his complaint will be ordered

dismissed.

        In both his opposition and surreply, Afram requests that if

his complaint is found to be deficient, that he be granted leave

to amend his complaint rather than his complaint being dismissed.

Because more than 21 days have elapsed since the defendants

served their motion to dismiss on Afram and the defendants do not

consent to Afram amending his complaint, Afram may amend his

complaint only with the court’s leave.    See Fed. R. Civ. P. 15.

However, “[a] request for a court order must be made by motion.”

Fed. R. Civ. P. 7(b)(1).    Local Civil Rule 7(i) requires that

“[a] motion for leave to file an amended pleading . . . be

accompanied by an original of the proposed pleading as amended.”

LCvR 7(i).    Because Afram has not moved to amend his complaint

and has not submitted his proposed amended complaint, his request

will not be considered.    However, because it is not “plain that

[Afram] has no claim to state[,]” Alley v. Resolution Trust

Corp., 984 F.2d 1201, 1207 (D.C. Cir. 1993), the order dismissing

his complaint will be stayed to allow Afram an opportunity to

file a motion to amend his complaint that complies with Rule

7(i).    Accordingly, it hereby

        ORDERED that the defendants’ motion [4] to dismiss Afram’s

complaint be, and hereby is, GRANTED.     It is further
                              - 4 -

     ORDERED that this order be, and hereby is, STAYED until

April 9, 2013.

     SIGNED this 26th day of March, 2013.


                                             /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
