               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0336n.06
                                                                                        FILED
                                          No. 10-3083
                                                                                   May 18, 2011
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


PAMELA G. SHAFFER,                              )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
RAWLINGS COMPANY, aka The Rawlings              )    NORTHERN DISTRICT OF OHIO
Company, aka The Rawlings Group, aka The        )
Rawlings Company PLLA, aka Rawlings &           )
Associates PLLC, aka The Rawlings               )
Company, Inc.,                                  )
                                                )
       Defendant-Appellee.                      )


       Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*


       SUTTON, Circuit Judge. After Pamela Shaffer was hurt in a car accident, her workplace

health insurance plan advanced her money for medical expenses. Acting on behalf of the insurance

plan, Rawlings Company, a collections agent, recovered part of the advance from Shaffer’s other

insurer. At that point, Shaffer filed this lawsuit, complaining that ERISA prevented Rawlings from

invoking a subrogation provision in the contract of insurance. We affirm the district court’s

dismissal of her complaint.




       *
         The Honorable James L. Graham, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 10-3083
Shaffer v. Rawlings Co.

                                                  I.


       Shaffer’s employer, Honda, provides health insurance through a plan administered by Aetna.

The plan covers medical expenses and contains a provision dealing with “Expenses Caused by a

Third Party (Subrogation and Right to Reimbursement).” R.1 ¶ 26; R.9-4 at 45. The provision

applies to “expenses . . . caused by another person,” and says the plan “may advance payment” for

these expenses, but it “will not cover” them. Id. The same provision gives the plan a “right of

recovery of any payments from the third party, liability insurance, . . . medical payments, or no-fault

or school insurance benefits which may be payable to [the beneficiary] or the third party regardless

of whether [the beneficiary has] been made whole.” Id. The plan “retain[s] the right to pursue all

rights of recovery” without an agreement from the beneficiary and “may . . . require [the beneficiary]

to file claims for payments” with other parties. Id.


       Shaffer also has medical insurance through her car insurance provider, American Home

Assurance Corporation. This plan covers medical expenses up to $10,000.


       In December 2006, Shaffer was in a car accident caused by another motorist. The Honda

insurance plan advanced Shaffer more than $10,000 for medical expenses. The plan recruited

Rawlings, a collections agent, to seek reimbursement from third parties. Rawlings filed a claim with

Shaffer’s American Home insurance plan and recovered the entire allowable amount—$10,000.


       Shaffer sued Rawlings, alleging that the collections agent had violated the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by requesting funds from one

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Shaffer v. Rawlings Co.

of Shaffer’s insurers before Shaffer recovered any funds from the same insurer. Rawlings filed a

motion to dismiss, after which Shaffer filed a response and a motion to amend her complaint. The

court granted Rawlings’ motion to dismiss and denied Shaffer’s motion to amend the complaint as

futile.


                                                   II.


          To survive a motion to dismiss, Shaffer must plead “enough factual matter” that, when taken

as true, “state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556, 570 (2007). Plausibility requires more than the “sheer possibility” of relief but less than

a “probab[le]” entitlement to relief. Ashcroft v. Iqbal, __U.S.__, 129 S. Ct. 1937, 1949 (2009).


          Shaffer’s insurance contract with Honda, as an initial matter, gave Rawlings the right to do

what it did—to seek reimbursement from other insurance providers for Honda’s $10,000 advance.

The plan documents establish the plan’s right to recover “any payments from . . . liability insurance,

. . . medical payments, or no-fault or school insurance benefits” payable to Shaffer, R.1 ¶ 26; R.9-4

at 45, including her American Home insurance. The documents describe the right as both

“subrogation,” meaning the plan may assert a claim on Shaffer’s behalf that she has not yet made

herself, and “reimbursement,” meaning the plan may request from Shaffer funds that she has already

recovered. The plan also reserves the right to pursue the funds without any further agreement from

Shaffer, the plan beneficiary. Shaffer offers no meaningful argument to the contrary about this

straightforward interpretation of the insurance plan.


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Shaffer v. Rawlings Co.

       What Shaffer argues instead is that ERISA prevents Rawlings (and Honda) from using this

subrogation provision. In doing so, she raises a two-step argument. Step one: ERISA, together with

two recent Supreme Court cases, establishes that Rawlings may not sue American Home (or Shaffer)

for damages to enforce the subrogation or reimbursement provision. Step two: Rawlings therefore

may not ask American Home to comply with the subrogation–reimbursement provision.


       There are several problems with this argument, not the least of which is one of logic. Even

if we assume for the sake of argument that ERISA does not permit Rawlings to sue American Home

(or Shaffer) for damages or legal relief, that says nothing by itself about whether Rawlings may try

to enforce a legitimate and far-from-unusual insurance contract. A law may place limits on lawsuits

without preventing the parties from agreeing to follow the terms of a contract on their own. Not

every contract right requires the parties to make a federal case out of it.


       We could stop there. But, for the sake of completeness, let us explain why § 502 of ERISA

and the cited Supreme Court cases also do not support this argument. Section 502 says:


               (a) Persons empowered to bring a civil action
       A civil action may be brought—
               (1) by a participant or beneficiary—
                       (A) for the relief provided for in subsection (c) of this section
                       [relating to a plan administrator’s duty to disclose information], or
                       (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; . . .
               (3) by a participant, beneficiary, or fiduciary

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Shaffer v. Rawlings Co.

                       (A) to enjoin any act or practice which violates any provision of this
                       subchapter or the terms of the plan, or
                       (B) to obtain other appropriate equitable 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).


       Shaffer reads this language to establish that “there is no right of subrogation or

reimbursement against plan participants’ funds unless the funds are in the actual or constructive

possession of the participants.” R.1 ¶ 43(a). The text shows otherwise. The subsection speaks to

the availability of “a civil action.” It pertains only to judicial remedies—the kind of relief that may

be sought in judicial proceedings and by whom. Nowhere does it speak to substance, either as to the

validity of contractual provisions in general or subrogation and reimbursement clauses in particular.

The provision “simply does not address the possibility of a recoupment device to recapture” funds

advanced by the plan. Northcutt v. Gen. Motors Hourly-Rate Emps. Pension Plan, 467 F.3d 1031,

1036 (7th Cir. 2006). When Congress creates a statutory duty, it does not necessarily create an

individually enforceable remedy, see Alexander v. Sandoval, 532 U.S. 275 (2001), and no less

importantly, a congressional limit on a remedy does not imply the lack of a substantive right.


       Shaffer insists that two Supreme Court cases “show[] that a fiduciary does not have a right

to be reimbursed for medical expenses paid by an ERISA plan unless there are specifically

identifiable funds in the possession and control of the plan participant.” Shaffer Br. at 14. The cases



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Shaffer v. Rawlings Co.

say no such thing and do no such thing. Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S.

356 (2006), and Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002),

construed § 502 to mean what it says—that fiduciaries may bring a civil action only for “equitable

relief.” Great-West, 534 U.S. at 206, 221; Sereboff, 547 U.S. at 361. In both cases, an ERISA

fiduciary sought judicial relief from plan participants, requiring the Court to define the scope of civil

actions. As Sereboff explained, Great-West and Sereboff provided “occasion[s] to clarify the scope

of the remedial power conferred on district courts,” 547 U.S. at 361 (emphasis added), not on

contracting parties. See Great-West, 534 U.S. at 209 (explaining focus on ERISA’s “enforcement

scheme”). The decisions do not speak to extra-judicial contractual reimbursement schemes. See

Northcutt, 467 F.3d at 1037.


        Shaffer objects that confining Great-West and Sereboff to cases “where an actual lawsuit is

brought . . . would . . . render the rulings . . . meaningless.” Shaffer Br. at 14. Not so. Great-West

and Sereboff still provide a limitation on the types of judicial remedies available to fiduciaries in

civil actions. If anything, it is Shaffer’s interpretation of § 502 that makes the key words in the

statute—most notably “civil action” and “equitable relief”—meaningless. Superfluity in exchange

for expanding the scope of prior decisions is “a poor trade of statutory anomalies,” particularly when

as here there is no anomaly to start with. CSX Transp., Inc. v. Ala. Dep’t of Revenue, __ U.S. __,

131 S. Ct. 1101, 1114 (2011); see id. at 1111–14.


        Shaffer next claims that the district court made three fact findings in rejecting her claim, all

inconsistent with Civil Rule 12(b)(6). The first determination—whether Shaffer constructively

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Shaffer v. Rawlings Co.

possessed her American Home insurance funds when Rawlings asserted its claim—did not affect the

court’s analysis. Although the court said that Shaffer possessed the funds, it did so only in the

context of characterizing Rawlings’ actions as an attempt to pursue a right of reimbursement as

opposed to subrogation. The district court correctly noted that its determination did not affect the

analysis. Whether Shaffer constructively possessed the funds is relevant only to whether any relief

sought in court would be legal or equitable under § 502. See Great-West, 534 U.S. at 207, 213–14.

Yet because § 502 does not apply to extra-judicial contractual rights, any constructive-possession

determination would be immaterial to the merits of Shaffer’s complaint.


       The second fact finding does not exist. Shaffer says that the court found that no underlying

plan documents exist. But the court made that observation only because Shaffer made the allegation

in her motion to amend the complaint. Civil Rule 12(b)(6) allows, indeed requires, district courts

to assume a claimant’s allegation to be true in order to decide whether Shaffer could amend her

complaint. See Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005).


       The third fact finding is also non-existent. Shaffer says that the court found that the summary

plan description contained a right of reimbursement. But that statement comes from her own

allegations, not impermissible fact-finding. She cited the summary plan description’s “Subrogation

and Right to Reimbursement” clause in her complaint, and the documents incorporated by reference

into the complaint confirm the existence of such a provision.




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No. 10-3083
Shaffer v. Rawlings Co.

       Shaffer maintains that the court “failed to give due consideration to . . . Shaffer’s claim that

the reimbursement agreement . . . is in violation of public policy.” Shaffer Br. at 34. In an apparent

attempt to avoid ERISA preemption, Shaffer casts this claim as one about federal (not state) public

policy, opting for the fire instead of the frying pan. No general federal common law or public policy

exists to void this contractual provision. As explained above, ERISA, Great-West and Sereboff

provide no support for Shaffer’s efforts to prevent reliance on contractual terms, as opposed to

judicial remedies. Shaffer in the final analysis provides no plausible reason why she can sue

Rawlings for asking American Home to comply with the terms of this contract.


       Shaffer asserts, last of all, that the court erred by denying her motion to add two allegations

to   her   complaint—that      the    lack   of    underlying    plan    documents      renders    the

subrogation–reimbursement clause void and that the plan administrator acted arbitrarily and

capriciously. See R.22 at 2–3. The court correctly denied her motion as futile. When there are “no

actual ‘plans’ separate and apart from the [summary plan descriptions] themselves,” as is the case

here, “the only relevant plan documents,” if indeed there are any relevant plan documents, “are the

[summary plan descriptions].” Sengpiel v. B.F. Goodrich Co., 156 F.3d 660, 668 n.6 (6th Cir. 1998);

see also Admin. Comm. of Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Gamboa, 479 F.3d

538, 544 (8th Cir. 2007).


                                                  III.


       For these reasons, we affirm.


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