                           NOT FOR PUBLICATION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


                                          3
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,”




                                          5
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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