The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Raymond Moffat, Tracey Moffat, and Source 110, Inc. ("Source 110") filed the present two-count Second Amended Class Action Complaint seeking benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B), and also alleging a breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(2), (a)(3), against Defendants UniCare Midwest Plan Group 31541 (the "Plan"), UniCare Health Insurance Company of the Midwest ("UniCare Midwest"), UniCare Life and Health Insurance Company ("UniCare Life"), and UniCare Health Insurance Company of Texas ("UniCare Insurance Texas"). Before the Court is Defendants' Amended Motion to Dismiss the Second Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and Rule 12(b)(7).*fn2 Also before the Court is Plaintiffs' Motion for Class Certification under the Second Amended Complaint pursuant to Rule 23. For the reasons set forth below, the Court grants in part and denies in part Defendants' Amended Motion to Dismiss. The Court denies Plaintiffs' Motion for Class Certification.
I. Prior Motion to Dismiss
The Court granted Defendants' first motion to dismiss because Plaintiffs had not named the Plan as a Defendant pursuant to established Seventh Circuit case law. See Blickenstaff v. R.R. Donnelley & Sons Co. Short Term Disability Plan, 378 F.3d 669, 674 (7th Cir. 2004) (when asserting claim for benefits under Section 502(a)(1)(B), claim must be brought against plan). Plaintiffs have since named the Plan as a Defendant in their First and Second Amended Complaints.
Plaintiffs Raymond Moffat and Tracey Moffat are insured under UniCare Midwest Plan Group 314541 (the "Plan") (R. 84-1, Second Am. Comp. ¶¶ 1, 3.) Plaintiff Source 110, Raymond Moffat's employer, is the Plan administrator. (Id. ¶¶ 3, 15.) The Plan is a Participating Provider Major Medical insurance policy. (Id. ¶ 1.) Participating Providers are those with whom UniCare Midwest has contracted to provide medical services to its insureds.
(Id.) The UniCare Defendants sell Participating Provider major medical plans in various states. (Id. ¶¶ 5, 6, 7.)
The Plan provides that a Participating Provider must accept as full payment the rate negotiated with UniCare Midwest. (Id. ¶ 20.) The Plan defines a "Negotiated Rate" as "the rate of payment that UNICARE has negotiated with a Participating Provider for Covered Services." (Id.) In addition, under the Plan, each insured person has an annual deductible of $1,000. (Id. ¶¶ 16, 21.) Once the insured meets the annual deductible, UniCare Midwest pays 70% of Covered Expenses until the insured meets the Out-of-Pocket Maximum of $5,000 per insured. (Id. ¶¶ 2, 16, 21.) After that, UniCare Midwest pays 100% of Covered Expenses. (Id. ¶ 21.)
In 2003, Tracey Moffat, who was diagnosed with cancer, went to fourteen Participating Providers for diagnosis, treatment, and surgery. (Id. ¶ 27.) From June 2003 until September 2003, she received infusion therapy at Evanston Northwestern Healthcare ("ENH"), which is a Participating Provider. (Id. ¶ 32.) While undergoing this course of treatment, UniCare Midwest sent invoices and Explanations of Benefits to the Moffats stating that they were liable for $48,000 of the cost of the infusion therapy. (Id. ¶ 35.) Plaintiffs allege that UniCare Midwest wrongly refused to pay the amounts that ENH charged which exceeded Covered Expenses as defined by the Plan.
Defendants assert that Plaintiffs failed to properly serve the Plan under Federal Rule of Civil Procedure 4, and thus the Court should dismiss Plaintiffs' Second Amended Complaint with prejudice. Plaintiffs counter that they properly served the Plan with the First Amended Complaint and received the waiver of service within the 120 days allowed by Rule 4, but that they did not file the Plan's waiver of service within the same 120 days. Nevertheless, Plaintiffs also served the Plan with the Second Amended Complaint and filed the Plan's waiver of service within 120 days of service. As such, Plaintiffs ask the Court to exercise its discretion and extend the time they had to file the waiver of service for the First Amended Complaint.
Rule 4(m) allows a district court to dismiss a case without prejudice if a plaintiff fails to perfect service of the summons and complaint upon the defendant within 120 days after filing the complaint if the plaintiff cannot show good cause for failing to do so. See Fed.R.Civ.P. 4(m); see also Coleman v. Milwaukee Bd. of Sch. Dir., 290 F.3d 932, 933-34 (7th Cir. 2002). Seventh Circuit case law also allows for the Court to extend the time for service based on excusable neglect. Coleman, 290 F.3d at 934; see also Fed.R.Civ.P. 6(b). Under the excusable neglect standard, the Court has the discretion to extend the deadline as long as the extension is reasonable. Coleman, 290 F.3d at 934; see also Henderson v. United States, 517 U.S. 654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). The Coleman decision lends the following guidance in making a determination under the excusable neglect standard:
Where ... the defendant does not show any actual harm to its ability to defend the suit as a consequence of the delay in service, where indeed it is quite likely that the defendant received actual notice of the suit within a short time after the attempted service, and where moreover dismissal without prejudice has the effect of dismissal with prejudice because the statute of limitations has run since the filing of the suit ..., most district judges probably would exercise lenity and ...