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Ortiz v. CIOX Health LLC

United States District Court, S.D. New York

February 22, 2018

VICKY ORTIZ, individually and on behalf of all others similarly situated, Plaintiffs,
CIOX HEALTH LLC, as successor in interest of IOD INC., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, Defendants.

          For the Plaintiff Lowell J. Sidney

          For Defendant CIOX Health LLC Kathryn A. Tiskus Hodgson Russ LLP, Jodyann Galvin Aaron M. Saykin Hodgson Russ LLP

          For Defendant The New York and Presbyterian Hospital John Houston Pope Epstein Becker & Green, P.C.

          OPINION & ORDER


         Plaintiff Vicky Ortiz brings this action against CIOX Health LLC (“CIOX”) as successor in interest to IOD Inc. (“IOD”), and against the New York and Presbyterian Hospital (“NYPH”), named in the complaint as Columbia Presbyterian Medical Center (“CPMC”).[1] Ortiz alleges that defendants violated a provision of New York Public Health Law § 18, which limits charges for copies of medical records to $0.75 per page, when they charged $1.50 per page for copies of Ortiz's medical records. Ortiz seeks money damages and injunctive relief, for herself and on behalf of a proposed statewide class. Defendants have moved to dismiss the First Amended Complaint (“FAC”). CIOX has also moved to strike several allegations in the FAC. For the following reasons, the motions to dismiss are granted as to Counts 2, 3, 4, and 5 of the FAC and denied as to Count 1 of the FAC. CIOX's motion to strike is denied as moot.


         The following facts are drawn from the FAC. In October 2016, Ortiz, through her counsel Lowell J. Sidney, made a written request to NYPH for medical records. Sidney informed NYPH that under New York Public Health Law § 18(2)(e), it could not charge more than $0.75 per page for copies of medical records. At that time, NYPH contracted with IOD, a predecessor in interest to CIOX, to provide copies of NYPH medical records and to bill NYPH's patients for those copies. Ortiz and Sidney were charged $1.50 per page for Ortiz's medical records. Ortiz, through Sidney, paid the bill even though it was in excess of the $0.75-per-page statutory maximum.

         From 2011 through 2017, CIOX and NYPH have processed over 1, 000 authorizations for medical records pursuant to Public Health Law § 18. The defendants continue to charge individuals similarly situated to Ortiz more than $0.75 per page for copies of their medical records.

         Ortiz filed her original complaint in New York state court on February 24, 2017. CIOX was served May 1 and on May 30 removed the action to federal court, asserting federal jurisdiction under the Class Action Fairness Act. On June 22, both defendants filed motions to dismiss the original complaint. In response, Ortiz filed the FAC on July 14. On August 3, CIOX filed a motion to dismiss and also moved to strike allegations in the FAC that name CIOX employees. NYPH filed a motion to dismiss on August 4. These motions became fully submitted on August 25. On November 7, 2017, the matter was reassigned to this Court.


         “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face to survive a motion to dismiss.” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (citation omitted). “[W]hile a court must accept all of the allegations contained in a complaint as true, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Balintulo v. Ford Motor Co., 796 F.3d 160, 165 (2d Cir. 2015) (citation omitted).

         I. Jurisdiction over Ortiz's Individual Claims

         NYPH argues that Ortiz lacks standing to pursue her claims because the FAC fails to allege that she, rather than Sidney, was injured. CIOX moves additionally to dismiss the claim for injunctive relief for lack of standing.

         To establish Article III standing, Ortiz must demonstrate “(1) injury-in-fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.” Allco Fin. Ltd. v. Klee, 861 F.3d 82, 95 (2d Cir. 2017) (citation omitted) (emphasis in original). “[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). “Although past injuries may provide a basis for standing to seek money damages, they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she is likely to be harmed again in the future in a similar way.” Nicosia v., Inc., 834 F.3d 220, 239 (2d Cir. 2016).

         When moving to dismiss for lack of jurisdiction, a defendant may either challenge the pleading as facially deficient, “based solely on the allegations of the complaint, ” or may “make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the Pleading.” Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56-57 (2d Cir. 2016). On a facial challenge to jurisdiction, a plaintiff has “no evidentiary burden” and a court must “presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. at 56 (citation omitted) (emphasis omitted). To oppose a fact-based Rule 12(b)(1) motion, a plaintiff may either “come forward with evidence of their own to controvert that presented by the defendant” or “rely on the allegations in the Pleading.” Id. at 57.

         In Carter, the Court of Appeals held that allegations that plaintiffs paid a charge “through” their counsel are “detailed factual allegations that the plaintiffs were the principals, who acted through their agents in requesting and paying for the records.” Id. at 58. Such allegations sufficiently demonstrated injury in fact at the motion to dismiss stage. Id. at 59.

         NYPH facially challenges the complaint on the ground that the FAC alleges that Ortiz's attorney, Sidney, paid for the copies of medical records, rather than Ortiz herself. The FAC alleges that “Plaintiff, through her attorneys The Law Office of Lowell J. Sidney, paid the bill which charged in excess of seventy-five cents ($0.75) per page for her medical records.” The FAC further alleges that “[a]s a direct and proximate result of the foregoing, Plaintiff suffered damages by, amongst other things, being caused to pay fees for the medical records in excess of the legally ...

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