
USCA1 Opinion

	




          May 11, 1992                                [NOT FOR PUBLICATION]                              _________________________          No. 91-2247                     BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS,                                Plaintiff, Appellant,                                         v.                        THE HARVARD COOPERATIVE SOCIETY, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                               ________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Fuste,* District Judge.                                         ______________                              _________________________               Norman  Jackman, with whom  Martha M. Wishart  and Jackman &               _______________             _________________      _________          Roth were on brief, for appellant.          ____               Francis  J. Lawler, with whom Robert M. Shea and Peabody and               __________________            ______________     ___________          Brown were on brief, for appellees.          _____                              _________________________                              _________________________                    Per   Curiam.     Blue   Cross  and   Blue  Shield   of                    ____________          Massachusetts  (Blue Cross)  settled certain  claims advanced  by          David Gaskell and Carolyn Gaskell, husband and wife.   As part of          the  settlement, Blue Cross assigned  to the Gaskells "all rights          of  any  kind  whatsoever  that  it  may  have"  against  various          entities, including the present appellees.                    The Gaskells then dropped Blue Cross as a defendant and          continued  their original suit (Suit No. 1) against the appellees          and others.   Eventually, the district court  ruled on Count X of          the  Gaskells' amended  verified complaint  (a count  wherein the          plaintiffs sought  to prevail against the  appellees as subrogees          of Blue Cross), granting judgment in appellees' favor.  The court          wrote:                         After   a   review   of   the   relevant                    provisions  of  the  Blue   Cross  Subscriber                    Certificate, and after  consideration of  all                    arguments raised by the pleadings, this Court                    finds,  as   a  matter  of  law,   that  Blue                    Cross/Blue   Shield   possessed   no   rights                    pursuant   to   the  Subscriber   Certificate                    against the [Harvard Cooperative Society] for                    reimbursement  of  any  monies   paid  toward                    plaintiffs'   medical   bills.     Thus,  the                    plaintiffs, as assignees  of Blue  Cross/Blue                    Shield, have  no right to recover  any monies                    beyond that which  they are receiving  in the                    form of continued medical benefits.                    Little daunted, the Gaskells' attorney filed a new suit          in  Blue Cross's name, in  a Massachusetts state  court (Suit No.          2).   The appellees removed Suit No. 2 to federal district court.          The district judge dismissed  it "on the basis of  the principles          of res judicata."  Blue Cross appeals.                                            2                    We  need  not linger.   We  note  that the  removal was          proper.  See McCoy  v. MIT, 950 F.2d 13, 15 n.1  (1st Cir. 1991),                   ___ _____     ___          petition for cert. filed,  60 U.S.L.W. 3601 (U.S. Feb.  14, 1992)          ________________________          (No.  91-1337).   We  note, further,  that  the doctrine  of  res          judicata was appropriately invoked.  See, e.g.,  Kale v. Combined                                               ___  ____   ____    ________          Ins. Co. of America,  924 F.2d 1161, 1165 (1st  Cir.) (describing          ___________________          essential elements of claim preclusion), cert. denied, 112 S. Ct.                                                   _____ ______          69 (1991).  We add only  two comments.  (1) The causes  of action          asserted  in  Count  X  of  Suit   No.  1  and  in  Suit  No.  2,          respectively, were sufficiently similar to  meet the requirements          of  the rule.   See  id. at  1166 (test  is whether  the theories                          ___  ___          asserted  concern, or derive from, the  same operative nucleus of          fact); Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir. 1983) (same).                 _____    ________          (2)   The "identity of parties" required to meet the requirements          of res  judicata is satisfied  when a person  in privity with  an          original party  stands in as  a surrogate  for that party  in the          second suit.  See, e.g., Fiumara v. Fireman's Fund Ins. Cos., 746                        ___  ____  _______    ________________________          F.2d 87, 92 (1st Cir. 1984).  Here, the Gaskells were plainly the          real parties in interest  on the plaintiffs' side in  both suits,          Blue Cross having assigned all  its rights to them.  No  more was          exigible.                    We need go  no further.   Finding, as  we do, that  the          appeal presents no substantial question, we affirm.  See 1st Cir.                                                               ___          Loc.  R.  27.1.   In  so  doing, we  express  no  opinion on  the          correctness of any of the district court's rulings in Suit No. 1,          those rulings not being before us at this time.          Affirmed.  Costs to appellees.          Affirmed.  Costs to appellees.                                          3
