NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HOOMAN MELAMED, M.D., an No. 12-55284
individual and HOOMAN M MELAMED
MD, INC., a California Professional D.C. No. 2:11-cv-04540-PSG-
Corporation, FFM
Plaintiffs - Appellants,
MEMORANDUM*
v.
BLUE CROSS OF CALIFORNIA and
ANTHEM BLUE CROSS LIFE AND
HEALTH INSURANCE COMPANY,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted February 5, 2014**
Pasadena, California
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In the last six years, plaintiff-appellant Dr. Hooman Melamed1 has filed
three lawsuits against Blue Cross of California and Anthem Blue Cross Life and
Health Insurance Company, collectively, the “WellPoint defendants.” After he
voluntarily dismissed the first and second lawsuits, Melamed filed the present
action in California state court. Under various legal theories, Melamed’s present
lawsuit alleges that the WellPoint defendants systematically underpaid him as an
out-of-network provider. His previous two voluntarily dismissed lawsuits made the
same general allegations. After determining that some of the patients at issue in
this case were covered by an ERISA plan at the time of treatment, the WellPoint
defendants removed the case to federal district court on the ground that at least one
claim was completely preempted by ERISA.
The district court held that removal was proper based on ERISA’s powerful
complete preemption. The district court then dismissed Melamed’s complaint with
prejudice under Rule 41’s “two dismissal” rule. Melamed appeals both of these
determinations. We have jurisdiction under 28 U.S.C. § 1291, and we review both
determinations de novo. Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581
1
Dr. Melamed’s medical practice, Hooman Melamed MD., Inc., is also a
named plaintiff in this present suit. We refer to both plaintiffs as Dr. Melamed for
brevity.
2
F.3d 941, 944 (9th Cir. 2009); Lake at Las Vegas Investors Grp., Inc. v. Pac.
Malibu Dev. Corp., 933 F.2d 724, 725 (9th Cir. 1991). We affirm.
ERISA has two separate preemption doctrines, conflict preemption and
complete preemption. It is complete preemption that we are concerned with in this
case. When one of a plaintiff’s state-law claims is completely preempted by
ERISA, the case may be removed to federal court even though the complaint does
not state a federal cause of action on its face. See Marin, 581 F.3d at 944–45.
Here, Melamed’s breach of implied contract claim is completely preempted
because through that claim, Melamed seeks reimbursement for benefits that exist
“only because of [the defendant’s] administration of ERISA-regulated benefit
plans.” Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 1226 (9th Cir. 2005)
(internal quotation marks omitted). In the operative complaint, Melamed alleges
that as “a direct and proximate result of Defendants’ breach of its obligations under
the written contracts between Defendants and Defendants’ members, to which
Plaintiffs are third-party beneficiaries, Plaintiffs have suffered damages.” Because
some of these “written contracts” are ERISA plans, Melamed is claiming that he is
owed money under the terms of an ERISA plan. This claim is completely
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preempted under Cleghorn v. Blue Shield of California, giving the district court
subject matter jurisdiction over this case. See id.
In his argument to the contrary, Melamed relies heavily on our decision in
Marin General Hospital v. Modesto & Empire Traction Co. 581 F.3d 941. But
Marin is not applicable to this case. In Marin, we explained that a hospital’s oral
contract claim was not preempted because the hospital did “not contend that it
[was] owed this additional amount because it [was] owed under the patient’s
ERISA plan. Quite the opposite. The Hospital [was] claiming this amount precisely
because it [was] not owed under the patient’s ERISA plan.” Id. at 947 (emphasis
added). Melamed, by contrast, does claim that he is owed money as a third-party
beneficiary under the terms of his patient’s ERISA plan. Thus his case is squarely
covered by the rule in Cleghorn. His claims are preempted.
Melamed also argues that removal was improper “because ERISA does not
govern all of the underlying medical claims.” He is mistaken. We evaluate whether
an individual claim is completely preempted. If it is, the existence of other
nonpreempted claims will not save the case from federal removal jurisdiction. See
4
Fossen v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102, 1109–10 (9th
Cir. 2011).
Having concluded that the case was properly removed, we now consider
whether it was properly dismissed. Rule 41(a)(1)(B) provides that if a plaintiff
“previously dismissed any federal- or state-court action based on or including the
same claim, a notice of dismissal operates as an adjudication upon the merits.”
The record reveals that the claims Melamed asserts in his present lawsuit are
substantially the same as those he twice voluntarily dismissed under Rule 41,
namely, that the WellPoint defendants failed to pay him the usual, customary, and
reasonable rate for the care he provided as an out-of-network provider. These
claims arose out of “the same transactional nucleus of facts,” involve infringements
of the same rights, and would involve the same evidence. Accordingly, we hold
that the district court did not err by dismissing his case with prejudice under the
two dismissal rule. See Costantini v. Trans World Airlines, 681 F.2d 1199,
1201–02 (9th Cir. 1982). We reject Melamed’s argument that because his second
dismissal may have been in response to a court order, it was not “voluntary,”
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because in both of his notices of dismissal, he stated that he “voluntarily
dismiss[ed]” his claims “pursuant to Federal Rule of Civil Procedure 41(a)(1).”
We also reject Melamed’s argument that because the present action contains
claims based on patient treatment that postdates the dismissal of his first
voluntarily dismissed complaint, he is saved from the two dismissal rule. This
argument fails because it is the dismissal of the second action that operates as an
adjudication on the merits, not the first. See Fed. R. Civ. P. 41(a)(1)(B). Thus, the
fact that certain claims may not have been included in Melamed’s first voluntarily
dismissed action is irrelevant. While he also points out that two of the claims he
identified in the operative complaint also postdate the filing of his second
voluntarily dismissed action, those claims arose before Melamed dismissed that
action and fall within the allegations he made in that case. Thus, they were within
the scope of the claims barred by his dismissal of that action.
The judgment of the district court is AFFIRMED.
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