United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS DEFENDANT JEREMY RODRIGUEZ-ORTEGA PURSUANT
TO FED. R. CIV. P. 21
DEFENDANTS' MOTION TO DISMISS DEFENDANT JEREMY
RODRIGUEZ-ORTEGA PURSUANT TO FED. R. CIV. P. 21 (Motion), the
New Mexico Office of Superintendent of Insurance (the OSI),
John G. Franchini, (Superintendent Franchini), and Jeremy
Rodriguez-Ortega (Rodriguez-Ortega) (together, Defendants)
ask the Court to dismiss Mr. Rodriguez-Ortega under Rule 21.
PHI Air Medical, Inc. (Plaintiff) does not oppose the Motion.
See PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO
DISMISS DEFENDANT JEREMY RODRIGUEZ-ORTEGA (Response). The
Court will grant the Motion.
3, 2018, Plaintiff's counsel received a letter from
Defendants' counsel asking Plaintiff to voluntarily
dismiss Mr. Rodriguez-Ortega because “Mr.
Rodriquez-Ortega is not a necessary party.” (Resp. at
1.) Plaintiff states that after “informal discussions
and communications between the parties regarding voluntary
dismissal of Mr. Rodriquez-Ortega[, ]” Defendants filed
the Motion under Rule 21. (Id. at 2.) In its
Response, Plaintiff indicates that now that it has been
informed of the legal basis for dismissal, it does not oppose
the Motion. (Id.)
Motion, Defendants maintain that Plaintiff's counsel
“did not provide counsel for Defendants the courtesy of
a response” to Defendants' May 3, 3018 letter.
(Mot. at 2.) Defendants do not discuss whether the parties
had informal discussions about dismissing Mr.
Rodriquez-Ortega as Plaintiff asserts. Defendants further
contend that their counsel sent an email on June 15, 2018
requesting that Plaintiff redact patient's names from the
Orders attached to the Complaint and that Plaintiff
voluntarily dismiss Mr. Rodriguez-Ortega as a defendant.
(Id.) Defendants state that Plaintiff did not
respond to the June 15, 2018 email. At the July 3, 2018
scheduling conference, Magistrate Judge Steven C. Yarbrough
asked the parties to confer about dismissal of Mr.
Rodriguez-Ortega and said that Defendants could file a motion
to dismiss if no agreement could be reached. CLERK'S
MINUTES (Doc. No. 26). Plaintiff's local counsel
apparently told Defendants' counsel that he would confer
with Plaintiff's out-of-state counsel about dismissing
Mr. Rodriguez-Ortega. Defendants represent that “[a]s
of the filing of this motion, no further word has been
received from Plaintiff's counsel.” (Id.
at 2-3.) Defendants then assert that “Plaintiff's
counsels' silence and refusal to communicate on this
issue for nearly three months” can be interpreted as
“opposition to the Motion.” (Id. at 3.)
Court is troubled by the actions of counsel for both
Plaintiff and Defendants. Defendants did not comply with
Local Rule 7.1(a) requiring them to “determine whether
a motion is opposed[;]” therefore, the Court may
summarily deny the Motion. D.N.M. LR-Civ. 7.1(a). Moreover,
it appears that counsel on both sides have acted
unprofessionally. Plaintiff's counsel complain about
opposing counsel's lack of candor in Defendants'
requests to dismiss Mr. Rodriguez-Ortega, and Defendants'
counsel complains about opposing counsel's
non-responsiveness to the May 3, 2018 letter and the June 15,
2018 email. More important, neither side represents that
counsel complied with Magistrate Judge Yarbrough's
request to confer regarding the dismissal of Mr.
Rodriguez-Ortega. This Court holds counsel to the highest
professional standards, and at this point, the Court does not
look favorably on the position of either side.
the Court will grant the Motion on the merits, and the Court
will require all counsel to file affidavits by September 5,
2018 stating that they have read and will comply with the
Local Rules of Civil Procedure of the United States District
Court for the District of New Mexico and “A Creed of
Professionalism of the New Mexico Bench and Bar.” See
D.N.M. LR-Civ. 83.9.
move to dismiss Mr. Rodriquez-Ortega under Rule 21 because
this action involves the interpretation of the New Mexico
Insurance Code, which Superintendent Franchini is responsible
to enforce. (Mot. at 1.) Rule 21 provides,
Misjoinder of parties is not a ground for dismissing an
action. On motion or on its own, the court may at any time,
on just terms, add or drop a party. The court may also sever
any claim against a party.
Fed. R. Civ. P. 21.
COMPLAINT (Doc. No. 1) (Complaint), Plaintiff claims that
Superintendent Franchini has misapplied New Mexico and
federal law in a decision prohibiting Plaintiff from billing
patients for the “usual, customary and reasonable
charge for out-of-network emergency Transportation
Services” if a “managed health care plan refuses
to pay” the bill in full. (Id. ¶ 5.)
Plaintiff alleges that Superintendent Franchini is unlawfully
“enforcing [New Mexico Insurance Laws] to prohibit
PHI's ability to balance bill in violation of the
preemption provision of the federal Airline Deregulation Act,
49 U.S.C. § 41713(b)(1) (the “ADA”).”
The ADA provides that “a State ... may not enact or
enforce a law, regulation, or other provision having the
force and effect of law related to a price, route, or service
of an air carrier[.]” 49 U.S.C. § 41713(b)(a)(1).
Specifically, Plaintiff asks for a judgment declaring that
“the Insurance Laws [of New Mexico] as applied by the
OSI Defendants [cannot] prohibit out-of-network air ambulance
providers from Balance Billing patients[.]” (Compl. at
p. 11.) Plaintiff also asks for a declaratory judgment
“that the Insurance Laws [of New Mexico], and any other
section, rule, or regulation that OSI attempts to enforce to
limit the price or rate for [Plaintiff's] Transportation
Services, are preempted, inapplicable and unenforceable as
they relate to air carriers, like [Plaintiff].”
(Id.) Finally, Plaintiff asks the Court to
permanently enjoin the OSI Defendants from enforcing such
statutes and regulations against air carriers, like
[Plaintiff], that hold a Part 135 Air Carrier
relevant time, Mr. Rodriquez-Ortega was a Compliance Officer
in the Managed Health Bureau of the OSI. (Mot. at 2.)
Plaintiff's Complaint makes no specific allegation
against Mr. Rodriquez-Ortega, and his only connection with
this matter is that his signature appears on a cover letter
sent to Plaintiff with Superintendent Franchini's Order
(attached to the Complaint as Exhibit C). In that Order,
Superintendent Franchini upheld an internal administrative
decision by New Mexico Health Connections that prohibited
Plaintiff from billing a patient for the remainder of the
amount charged for Plaintiff's services that was not
covered by the patient's plan-called “balance
billing.” See Complaint, Ex. C, R.W. v. New Mexico
Health Connections, No. 17-00023-EXTR-ADMIN, ORDER
GRANTING REQUEST FOR EXTERNAL REVIEW (June 28, 2017). In the
cover letter to Plaintiff, Mr. Rodriguez-Ortega stated,
“should you have questions or concerns about the Order,
you may contact me[.]” There is no allegation, however,
that Mr. Rodriguez-Ortega took part in preparing or enforcing
that Order or was involved with any other decision at issue
in this case. Defendants maintain that a judgment in this
case will bind Superintendent Franchini and all employees of
the OSI; thus, “there is no need to have
Rodriguez-Ortega in this case.” (Mot. at 2.)
21 allows the court to dismiss parties ‘on such terms
as are just,' thus granting considerable discretion to
the trial court.” Lenon v. St. Paul Mercury Ins.
Co., 136 F.3d 1365, 1371 (10th Cir. 1998). Rule 21 is
the proper vehicle for dismissing parties when “no
relief is demanded from … or no claim of relief is
stated against [them].” Moubry v. Kreb, 58
F.Supp.2d 1041, 1048 (D. Minn. 1999). See also Ravenswood
Inv. Co. v. Avalon Correctional Services, 651 F.3d 1219,
1226 (10th Cir. 2011) (remanding case to district court to
determine whether non-diverse parties should be dropped under
Rule 21 or whether parties are indispensable); and
Waconda ex rel. Estate of Leon v. United States et al.,
No. Civ. 06-0101 JB/ACT, 2006 WL 4109670, at * 3 (D. N.M.
Aug. 28. 2006) (granting motion to dismiss party under Rule
21 because the party “cannot be liable for the
activities that ...