Case 5:19-cv-04007-HLT-TJJ Document 244 Filed 04/02/21 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`ORCHESTRATE HR, INC, et al.,
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`Plaintiffs,
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`v.
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`BLUE CROSS BLUE SHIELD KANSAS,
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`Defendant.
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` Case No. 5:19-cv-4007-HLT-TJJ
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`MEMORANDUM AND ORDER
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`Plaintiffs Orchestrate HR, Inc. and Vivature, Inc. (collectively “Vivature”) filed this
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`diversity action against Defendant Blue Cross Blue Shield Kansas and assert various tort claims.
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`Currently before the Court is Blue Cross’s motion to dismiss Vivature’s second amended
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`complaint. Doc. 217. Blue Cross seeks to dismiss claims Vivature added in its second amended
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`complaint. As discussed below, the Court grants in part and denies in part Blue Cross’s motion.
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`Vivature’s claims for fraud, defamation, and tortious interference with contract remain as they did
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`following the Court’s prior ruling on the earlier motion to dismiss. See Doc. 69. Vivature’s claim
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`of fraud by nondisclosure, which was added in the second amended complaint, is dismissed
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`without prejudice.
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`I.
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`BACKGROUND
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`Generally stated, the allegations in this case involve Vivature’s work with universities to
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`help them bill insurers for medical services performed by the universities’ licensed athletic
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`trainers. Vivature contracts with schools and helps them file the insurance claims and receives a
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`share of the billings collected. This dispute arose when Blue Cross denied many of the claims
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`submitted by Vivature for the universities and began labeling the insurance claims as fraudulent
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`or improper. Vivature contends that Blue Cross fraudulently induced them to change their claims-
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`Case 5:19-cv-04007-HLT-TJJ Document 244 Filed 04/02/21 Page 2 of 12
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`filing practices on a promise that claims would be paid, fraudulently failed to disclose certain
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`information, defamed Vivature to Washburn University and other schools, and tortuously
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`interfered with Vivature’s contracts with Washburn University and other schools. Vivature asserts
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`four claims in the second amended complaint: fraud, fraud by non-disclosure, defamation, and
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`tortious interference with contract. Doc. 194 at 25-31.
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`The current motion to dismiss is not the first filed in this case. The Court previously granted
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`in part and denied in part a prior motion to dismiss the first amended complaint.1 That order stated
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`that Vivature’s fraud claim is limited to alleged fraudulent representations made in an October 17,
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`2017 call between Vivature and Blue Cross; that Vivature’s defamation claim is limited to the
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`March 7, 2018 letter sent by Blue Cross Blue Shield of North Dakota to Washburn, and which
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`repeated statements made by a Blue Cross representative named Becky; and that Vivature’s claim
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`for tortious interference with contract is limited to its contract with Washburn University. See Doc.
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`69 at 1-2, 19. All other claims, including one for tortious interference with prospective business
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`relations, were dismissed. The Court also found that Texas law governs Vivature’s claims. Id. at
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`8-9. Vivature subsequently sought and was granted leave to file a second amended complaint,
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`which is now the operative complaint. See Doc. 194.
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`Blue Cross now moves to dismiss the second amended complaint. In its reply brief, Blue
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`Cross clarifies that it is only seeking dismissal of newly asserted claims beyond those that were
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`defined by the Court in its prior order. It does not seek dismissal of any surviving claims carried
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`forward from the first amended complaint into the second amended complaint. Doc. 243 at 2-3.
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`1
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`In addition, the Court has denied as moot a motion to dismiss the original complaint, denied a Rule 12(b)(1) motion
`to dismiss the first amended complaint, and denied two motion to dismiss under the Texas Citizens Participation
`Act. These motions are in addition to many, many others filed in this contentious case. Although the parties have
`been warned about the scorched-earth litigation tactics employed here, without much apparent effect, the Court
`will again remind the parties about their obligations under Rule 1 of the Federal Rules of Civil Procedure.
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`2
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`II.
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`STANDARD
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`To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`A claim is plausible if it is accompanied by sufficient factual content to allow a court “to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility
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`standard requires “more than a sheer possibility that a defendant has acted unlawfully,” but it “is
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`not akin to a ‘probability requirement.’” Id. “Where a complaint pleads facts that are merely
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`consistent with a defendant’s liability, it stops short of the line between possibility and plausibility
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`of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal quotations omitted). In
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`undertaking this analysis, a court accepts as true all well-pleaded allegations in the complaint,
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`though it need not accept legal conclusions. Id. Likewise, conclusory statements are not entitled to
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`the presumption of truth. Id. at 678-79.
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`III. ANALYSIS
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`A.
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`Fraud
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`The Court previously ruled that Vivature had properly alleged a fraud claim based on the
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`October 17, 2017 call between various Vivature and Blue Cross representatives where someone
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`from Blue Cross represented—fraudulently, according to Vivature—that Blue Cross would
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`process and pay claims if Vivature made changes to its claims-filing process. Doc. 69 at 10. Blue
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`Cross now moves to dismiss what it suggests is an expanded fraud claim in the second amended
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`complaint. But Vivature clarifies that it has not added any new allegations of fraud. Doc. 227 at 8.
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`Because Vivature represents that its fraud claim is unchanged, the Court reiterates its holding that
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`Vivature has adequately stated a fraud claim based on the October 17, 2017 call. Doc. 69 at 10.
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`3
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`The parties also debate the proper measure of damages for Vivature’s fraud claim. But the
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`issue before the Court is whether Vivature has adequately pleaded a fraud claim, not what the
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`proper measure of damages are. The Court has previously addressed the potential damages. See
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`id. at 5-7.The Court sees no need to revisit that issue at this stage. Accordingly, Blue Cross’s
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`motion as to Vivature’s fraud claim is denied.
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`B.
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`Fraud by Nondisclosure
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`Blue Cross argues that Vivature fails to allege with sufficient particularity a claim for fraud
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`by nondisclosure.2 The elements of fraud by nondisclosure are: (1) concealment or nondisclosure
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`of material fact within a party’s knowledge; (2) knowledge that the other party was unaware of the
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`fact and could not discover the truth; (3) intent to act by concealment or nondisclosure of the fact;
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`and (4) injury caused by the nondisclosure. NuVasive, Inc. v. Renaissance Surgical Ctr. N., L.P.,
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`853 F. Supp. 2d 654, 663 (S.D. Tex. 2012). “In order to be actionable, a claim for fraud by
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`nondisclosure requires there to have been a duty to disclose.” Id. at 661. Thus, to plead fraud by
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`nondisclosure, a plaintiff must show a failure to disclose facts, a duty to disclose those facts, and
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`that the facts were material. EC & SM Guerra, LLC v. Philadelphia Indem. Ins. Co., 2020 WL
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`6205855, *3 (W.D. Tex. 2020).
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`The heightened pleading standard in Rule 9(b) applies to claims of fraud by nondisclosure.
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`Id. This requires a party alleging fraud to “state with particularity the circumstances constituting
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`fraud.” Fed. R. Civ. P. 9(b). This “requires plaintiff to set forth the ‘who, what, where, and when’
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`of the alleged fraud.” Arena v. Wal-Mart Stores, Inc., 221 F.R.D. 569, 571 (D. Kan. 2004). Intent
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`can be alleged generally. Fed. R. Civ. P. 9(b).
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`2 Fraud by nondisclosure was not asserted in the first amended complaint and therefore Court did not address it in the
`prior order.
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`4
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`In its claim for fraud by nondisclosure, Vivature alleges that Blue Cross “failed to disclose
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`a multitude of material facts.” See Doc. 194 at ¶ 67 (listing facts). Vivature also alleges that Blue
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`Cross had a duty to disclose these facts because discovery of new information made earlier
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`representations misleading or untrue; partial disclosures created false impressions; and voluntary
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`disclosure of some information created a duty to disclose the whole truth. Id. at ¶ 68.
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`The Court finds this fails to plead fraud by nondisclosure with the requisite particularity.
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`At most, Vivature has alleged that Blue Cross did not disclose certain facts. But missing from the
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`second amended complaint is the significance of these facts or why Blue Cross was obligated to
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`disclose them. Although Vivature alleges that Blue Cross had a duty to disclose this information,
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`see id., this allegation is just a rote recitation of the legal standard for when a duty might arise.
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`Compare Tornado BUS Co. v. BUS & Coach Am. Corp., 2015 WL 11120584, at *5 (N.D. Tex.
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`2015) (stating “a duty to disclose may arise: (1) when one party voluntarily discloses information,
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`which gives rise to the duty to disclose the whole truth; (2) when one party makes a representation,
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`which gives rise to the duty to disclose new information that the party is aware makes the earlier
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`representation misleading or untrue; or (3) when one party makes a partial disclosure and conveys
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`a false impression, which gives rise to a duty to speak”), with Doc. 194 at ¶ 68. Vivature does not
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`explain how or why these duties arose, what discoveries made earlier representations untrue, what
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`partial disclosures needed correcting, or how Blue Cross disclosed some but not all information.
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`This fails to satisfy Rule 9(b). See Tornado BUS Co., 2015 WL 11120584, at *5 (“Without
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`additional specific factual allegations showing that this statement gave rise to a duty to disclose
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`additional information, the pleadings fail to meet the specificity requirement.”). Vivature also fails
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`to allege how any of these alleged omissions caused it injury.3
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`3 It appears many of these omissions also relate to Vivature’s defamation or tortious-interference claims. But the fact
`that Vivature may have been injured by certain actions or statements for purposes of those claims does not mean
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`5
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`Indeed, as the only factual support for this claim, Vivature directs the Court and Blue Cross
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`to “the documents discussed herein as well as those attached to this pleading, the testimony
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`referenced herein and as well as the testimony attached to this pleading, and the additional facts
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`plead herein for detail and support for these contentions.” See Doc. 194 at 27 n. 69; see also id. at
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`26 n. 68. As discussed below, this is insufficient and does not satisfy the pleading requirements of
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`either Rule 9(b) or even Rule 8. See Hart v. Salois, 605 F. App’x 694, 701 (10th Cir. 2015)
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`(upholding dismissal of “shotgun pleading” because it violated Rule 8, noting that a court is not
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`require to sift through factual allegations to match facts to elements of a claim); see also United
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`States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles
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`buried in briefs.”).
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`Accordingly, the Court grants Blue Cross’s motion to dismiss Vivature’s claim for fraud
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`by nondisclosure. Because the Court concludes Vivature’s fraud by nondisclosure claim is not
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`pleaded with particularity, the Court does not each Blue Cross’s other arguments on this issue.
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`C.
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`Defamation
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`“The elements of defamation under Texas law are that: (1) the defendant published a
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`statement; (2) that was defamatory concerning the plaintiff; (3) while acting with malice, if the
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`plaintiff was a public figure, or negligence, if the plaintiff was a private individual, regarding the
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`truth of the statement.” Encompass Office Sols., Inc. v. Ingenix, Inc., 775 F. Supp. 2d 938, 958
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`(E.D. Tex. 2011). Defamation is not subject to the Rule 9(b) standard for pleading, but “pleadings
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`for a defamation claim must be sufficiently detailed to the extent necessary to enable the defendant
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`to respond.” Id.; Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d 1266, 1270 (D. Kan. 2012) (“A
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`that Vivature has stated a claim for fraud by nondisclosure simply because Blue Cross did not disclose that it made
`the statement. Fraud, defamation, and tortious interference are independent causes of action and must be pleaded
`accordingly.
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`6
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`claim of defamation complies with pleading requirements when it supplies sufficient notice of the
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`communications complained of to allow [the defendant] to defend itself.” (internal quotations and
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`citations omitted)).
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`Blue Cross argues that Vivature’s new defamation claims—beyond the March 7, 2018
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`letter upheld in the prior order—have not been pleaded with the requisite detail. Vivature responds
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`that it provided “a list of over 50+ written communications by [Blue Cross] that [Vivature]
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`contend[s] are defamatory,” that it has listed “the actual defamatory statements made or the
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`defamatory implications which resulted from the statements” and the recipients of those
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`statements. Doc. 227 at 16.
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`The Court finds this to be an overstatement of what is actually included in the second
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`amended complaint. The second amended complaint references documents by Bates number as
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`“examples” of defamatory statements. Doc. 194 at ¶ 8.4 It then asserts that these statements were
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`defamatory because they accused Vivature of “Committing fraud,” “Filing false claims,” and
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`“Perpetuating a scheme,” among other things. Id. at ¶ 9. None of the exact alleged defamatory
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`statements contained in the documents are listed or quoted. Vivature also lists the recipients of
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`these statements, but only very generally, with categorical reference to institutions or corporations.
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`Id. at ¶ 7 (listing the United States Department of Justice, the FBI, other Blue Cross entities, the
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`HHS Office of Inspector General, the Postal Service, Medicare/Medicaid, Aetna, etc.).
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`This fails to sufficiently detail the alleged defamation. Exhibits to a complaint are
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`permissible but not essential. Rule 8 is the ultimate arbiter of pleadings, and it states that a pleading
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`must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
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`4 Only 8 of these documents were attached to the second amended complaint, apparently because Blue Cross has
`designated them as confidential. See Doc. 194 at 3 n.3. But all the documents—over 1500 pages—were filed as
`exhibits to Vivature’s response. See generally Doc. 242.
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`7
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`Fed. R. Civ. P. 8(a)(2). But a party cannot skip Rule 8’s requirements by “attach[ing] a large
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`number of exhibits to his claims with the expectation that the Court will read the exhibits and
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`extract the necessary factual pieces to construct a cognizable claim on Plaintiff’s behalf.” Cantu v.
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`Garcia, 2010 WL 2605336, at *2 (E.D. Cal. 2010). Indeed, “[a]ttaching a large number of exhibits
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`to a complaint will result in the complaint being dismissed for failure to comply with the Federal
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`Rule of Civil Procedure 8, as it will render the complaint to be neither a ‘short’ nor a ‘plain’
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`statement of [a plaintiff’s] claims.” Id.
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`The Court will not sift through the 1500 pages of exhibits referenced to determine whether
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`any of them support a defamation claim against Blue Cross, and it will not require Blue Cross to
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`do so either.5 Nor do the other allegations actually pleaded state a claim for defamation, beyond
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`that previously upheld by the Court. At most, Vivature has pleaded allegations that, at some point
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`in time, Blue Cross made certain vague defamatory statements to unspecified individuals at various
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`institutions. See Doc. 194 at ¶¶ 7-10. This is not sufficiently detailed to allow Blue Cross to
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`meaningfully respond. See Encompass, 775 F. Supp. 2d at 958.
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`Accordingly, to the extent Vivature asserts additional defamation claims beyond those
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`previously allowed, Blue Cross’s motion is granted. Because the Court concludes Vivature has not
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`adequately pleaded additional claims of defamation, the Court does not reach Blue Cross’s other
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`arguments on this issue.
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`D.
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`Tortious Interference with Contract
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`Under Texas law, “[t]he elements of tortious interference with a contract are (1) an existing
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`contract subject to interference, (2) a willful and intentional act of interference with the contract,
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`5 In its prior order, the Court allowed Vivature’s defamation claim based on the March 7, 2018 letter to proceed, in
`part because the letter was attached to the amended complaint and reflected the sender, recipient, and date. Doc. 69
`at 13. But that letter was also specifically described in the first amended complaint. See Doc. 26 at 6-7, 10.
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`8
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`(3) that proximately caused the plaintiff’s injury, and (4) caused actual damages or loss.” McGehee
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`v. Hagan, 367 S.W.3d 848, 854 (Tex. App. 2012).
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`In its prior order, the Court ruled that Vivature had adequately pleaded tortious interference
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`with a contract as to Washburn only, “but not as to the myriad other schools Vivature has relegated
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`to a footnote.” Doc. 69 at 16. This was because the only contract specifically pleaded was
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`Vivature’s contract with Washburn and the only interference alleged was a defamatory statement
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`sent to Washburn. Id.
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`Vivature’s second amended complaint again purports to assert a tortious interference with
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`contract claim as to Washburn “and the other Kansas Schools.” Doc. 194 at ¶ 83.6 Blue Cross
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`argues that, like in the previous complaint, Vivature’s allegations in the second amended complaint
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`should be limited to Washburn. Vivature, in response, claims that “the specificity of the claim
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`plead has been increased dramatically.” Doc. 227 at 27.
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`The Court disagrees that Vivature has made this claim more specific. As to the contracts
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`with other schools, it appears Vivature has only added the dates Vivature began contracting with
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`these schools (and in three cases, the end date of the contract). Doc. 194 at 7 n.9. This information
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`is still in a footnote. These contracts are not otherwise addressed. Even if the Court found the
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`existence of the contracts properly alleged, there are no specific allegations about how Blue Cross
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`interfered in the contracts with the other schools.
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`Vivature points to seven paragraphs that it says supports its claim of tortious interference,
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`ostensibly as to both Washburn and the “other Kansas schools.” Doc. 227 at 27-29 (citing
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`paragraphs 13, 48-49, 51, 53, 55, and 83). The Court has reviewed these paragraphs. Even
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`6 The cause of action for tortious interference in the second amended complaint is essentially identical to that in the
`first amended complaint.
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`9
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`accepting them as true, they do not state a tortious interference claim involving the other footnoted
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`Kansas schools. At most, these are generalized accusations that Blue Cross was making things
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`generally more difficult for Vivature by not allowing claims to be submitted electronically, by
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`requiring additional documentation, or by not providing it with requested information. But these
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`allegations are not tied to any particular contract, nor are there specific allegations that this conduct
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`interfered with any contract.7 Likewise, a letter to an individual insured and an internal Blue Cross
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`email do not demonstrate interference with any particular contract.8
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`Vivature also references “numerous documents” attached to the second amended complaint
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`which it says provide “further detail” as to this claim. Vivature cites as an example the declaration
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`of Cam Clark, which states that, in Clark’s opinion, Blue Cross hurt the relationship between
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`Vivature and Newman University. Doc. 227 at 29. But as explained above, exhibits attached but
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`not pleaded do not support a complaint. Cantu, 2010 WL 2605336, at *2.9
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`Accordingly, the Court grants Blue Cross’s motion to dismiss to the extent it seeks
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`dismissal of claims for tortious interference with contract regarding schools other than Washburn.
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`7 The second amended complaint alleges that Blue Cross’s “wrongful actions” have caused Newman University to
`stop using Vivature’s software and to stop billing for services provided, and that Baker University terminated its
`contract as a result of Blue Cross’s “improper actions.” Doc. 194 at ¶ 35; see also id. at 7 n.9 (adding that Fort Hays
`State University terminated its contract as well). But these allegations are entirely conclusory and do not plausibly
`state a claim for tortious interference with Vivature’s contracts with these schools.
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`8 Vivature also alleges that it believes discovery will uncover documents showing tortious interference by Blue Cross.
`Doc. 194 at ¶ 13. But it is axiomatic that pleading must come before discovery. Iqbal, 556 U.S. at 678-79 (noting
`that the doors of discovery are not unlocked for “a plaintiff armed with nothing more than conclusions”).
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`9 Vivature attempted to rely on Clark’s declaration as evidence of Blue Cross’s interference with its contract with
`Newman University in defending against the earlier motion to dismiss. The Court rejected that argument in part
`because the declaration was not even attached to the first amended complaint. Doc. 69 at 16 n.16. Vivature
`apparently attempted to avoid that outcome again by attaching Clark’s declaration, as well as others, to the second
`amended complaint. Doc. 194 at 8 n.10. But the problem before was not just that the declaration wasn’t attached—
`it was also that the underlying information was not even pleaded in the first amended complaint. Doc. 69 at 16 n.16.
`This failing has not been rectified, as discussed above. As it did with the defamation allegations, Vivature merely
`attaches several declarations and declares its “intention that all contents of these affidavits constitute additional facts
`plead by Plaintiffs in this pleading.” Doc. 194 at 8 n.10. This is plainly improper and contrary to Rule 8. See Cantu,
`2010 WL 2605336, at *2.
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`10
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`E.
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`Requests to Amend and Other Arguments
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`In its response, Vivature repeatedly states that it “seek[s] leave to amend their Complaint
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`to correct any pleading deficiencies.” As the Court noted in its prior order, Doc. 69 at 12 n.13, a
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`vague request amend a pleading is not sufficient, nor does it comply with D. Kan. Rule 15.1. See
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`Albers v. Bd. of Cnty. Comm’rs, 771 F.3d 697, 706 (10th Cir. 2014) (“[A] bare request to amend
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`in response to a motion to dismiss is insufficient to place the court and opposing parties on notice
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`of the plaintiff’s request to amend and the particular grounds upon which such a request would be
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`based.”). Vivature also “request[s] a new deadline for amendment and that Plaintiffs be allowed
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`to amend and replead to the extent that the Court is inclined to grant any portion of the Motion to
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`Dismiss.” Doc. 227 at 36. Again, this request is not proper in this context.10
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`Blue Cross also makes arguments about the second amended complaint’s allegations that
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`newly asserted claims relate back to the original complaint or are subject to the discovery rule.
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`Because the Court grants the motion to dismiss as to any newly asserted claims, the Court does
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`not reach these arguments.
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`IV. CONCLUSION
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`THE COURT THEREFORE ORDERS that Blue Cross’s Motion to Dismiss Vivature’s
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`Second Amended Complaint (Doc. 217) is GRANTED IN PART AND DENIED IN PART. The
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`motion is denied as to Vivature’s fraud claim. The motion is granted as to Vivature’s claims for
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`fraud by nondisclosure, defamation, and tortious interference with contract to the extent Vivature
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`10 Although whether to grant any contested request to amend will be within the discretion of the assigned Magistrate
`Judge, the undersigned notes that this case is now more than two years old and on its third version of the complaint.
`Given that the deadline to amend has passed, Vivature will have to satisfy both Rule 15 and show good cause for
`any future amendment. Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014);
`see also Olivares v. Nat’l R.R. Passenger Corp., 2018 WL 4052203, *1 (D. Kan. 2018). The Court is also concerned
`that the second amended complaint did little to meaningfully address problems identified in the prior ruling on the
`earlier motion to dismiss, leaving the case in essentially the same position it was in November 2019. At the risk of
`yet another round of amended pleadings and motions to dismiss, the Court encourages the parties to review Rule 1
`and their respective interests and consider how to best move this dispute towards resolution.
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`11
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`asserts claims beyond those previously upheld by the Court. See Doc. 69 at 1-2, 19. All other
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`/s/ Holly L. Teeter
`HOLLY L. TEETER
`UNITED STATES DISTRICT JUDGE
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`claims are dismissed without prejudice.
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`IT IS SO ORDERED.
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`Dated: April 2, 2021
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`12
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