                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MITCHELL SGRO,                         
                Plaintiff-Appellant,
                                            No. 06-55916
                v.
DANONE WATERS OF NORTH                       D.C. No.
                                           CV-05-05110-R
AMERICA, INC.; METROPOLITAN LIFE
                                             OPINION
INSURANCE COMPANY,
            Defendants-Appellees.
                                       
        Appeal from the United States District Court
           for the Central District of California
         Manuel L. Real, District Judge, Presiding

                  Argued and Submitted
          February 6, 2008—Pasadena, California

                     Filed July 2, 2008

           Before: Alex Kozinski, Chief Judge,
     Diarmuid F. O’Scannlain and William A. Fletcher,
                     Circuit Judges.

             Opinion by Chief Judge Kozinski




                            8053
8056               SGRO v. DANONE WATERS


                         COUNSEL

Gary S. Soter, Clifford H. Pearson and Daniel L. Warshaw,
Pearson, Soter, Warshaw & Penny, LLP, Sherman Oaks, Cali-
fornia, for the plaintiff-appellant.

Gail E. Cohen, Andrew S. Williams and Misty A. Murray,
Barger & Wolen LLP, Los Angeles, California, for the
defendants-appellees.


                         OPINION

KOZINSKI, Chief Judge:

   We consider a variety of procedural issues that relate to
Employee Retirement Income Security Act (ERISA) claims,
including whether an ERISA plan must reimburse its benefi-
ciaries for the cost of photocopying medical records.

                            Facts

   Mitchell Sgro worked for defendant Danone Waters until
he became disabled, at which point he applied for disability
benefits from MetLife, the company that makes benefits
determinations for Danone Waters’s ERISA plan. But,
according to Sgro, MetLife refused to consider his claim
because he didn’t provide copies of his medical records. Sgro
objected to paying for photocopying the records and
demanded that MetLife do so, but MetLife refused. Sgro
eventually paid $412 for the copies, and MetLife thereupon
considered and denied his claim. Sgro then asked for copies
of all of MetLife’s documents pertaining to his claim. MetLife
                       SGRO v. DANONE WATERS                          8057
complied with this request in part, but Sgro claims the com-
pany held back the notes kept by its claims personnel.

   Sgro sued MetLife and Danone Waters in federal court,
seeking unpaid benefits, reimbursement of his copying costs,
an injunction ordering defendants to pay such costs in the
future and statutory penalties for defendants’ failure to turn
over the notes kept by MetLife’s personnel. Sgro asserted
causes of action under state and federal law. The district court
dismissed his state-law claims with prejudice, and his federal
claims without prejudice. The parties have since settled
Sgro’s claim for unpaid disability benefits, but Sgro appeals
the dismissal of his other claims.

                                Analysis

   [1] 1. Sgro claims that Danone Waters’s disability bene-
fits plan isn’t governed by ERISA because it falls within the
“safe harbor” created by 29 C.F.R. § 2510.3-1(j). For Sgro to
prevail on this point, he would have to prove that the plan
meets four separate requirements of the regulation, including
that the employer make “[n]o contributions” to the plan. Id.
§ 2510.3-1(j)(1).1 Sgro does allege that Danone Waters pays
   1
     Defendants point out that the plan documents refute Sgro’s claim; if
the documents are correct, then the plan doesn’t meet some of the regula-
tion’s requirements. We’re allowed to consider the plan documents, even
on a motion to dismiss, because Sgro refers to them in his complaint.
Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on
other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119,
1127 (9th Cir. 2002). However, where the parties disagree as to whether
the plan documents accurately reflect the terms of the plan as it was actu-
ally implemented, consideration of such documents does not resolve the
relevant issues in the context of a motion to dismiss. See Zavora v. Paul
Revere Life Ins. Co., 145 F.3d 1118, 1122 (9th Cir. 1998) (whether a plan
is governed by ERISA is a question for the trier of fact). Sgro here alleges
that the plan documents do not accurately reflect the plan as implemented
as to all but the regulation’s requirement that Danone Waters make “[n]o
contributions” to the plan. For purposes of the motion to dismiss, we have
to assume that Sgro is right about this.
8058               SGRO v. DANONE WATERS
none of the plan’s supplemental “buy-up” benefits, which
employees may purchase to augment the “core” benefits. But,
even if true, this wouldn’t bring the plan within the safe har-
bor. So long as Danone Waters pays for some benefits,
ERISA applies to the whole plan, even if employees pay
entirely for other benefits. See Glass v. United of Omaha Life
Ins. Co., 33 F.3d 1341, 1345 (11th Cir. 1994); see also Crull
v. GEM Ins. Co., 58 F.3d 1386, 1390 (9th Cir. 1995) (“[A]n
employer’s payment of a portion of the insurance premium
[is] a significant factor for determining the existence of an
ERISA plan.”).

   [2] We therefore affirm the district court’s dismissal of
Sgro’s state-law claims. But the district court abused its dis-
cretion when it dismissed these claims with prejudice. On
remand, Sgro may amend his complaint; if he is able to allege
in good faith that Danone Waters pays nothing, he would then
be entitled to discovery as to whether the safe harbor applies.
If the trier of fact ultimately determines that the plan isn’t
governed by ERISA, then the district court must reconsider
Sgro’s state-law claims.

    [3] 2. Sgro claims that a California insurance regulation
requires defendants to reimburse him for the cost of copying
the medical records that MetLife requested. Cal. Code Regs.
tit. 10, § 2695.11(g) (implementing Cal. Ins. Code
§ 10123.131). But if the plan is governed by ERISA, then sec-
tion 1144 of that statute preempts the California regulation.
Section 1144 preempts “any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan,” 29
U.S.C. § 1144(a), unless those laws “regulate[ ] insurance,”
id. § 1144(b)(2)(A). There’s no dispute that the California
regulation does “relate” to this “employee benefit plan.” The
closer question is whether the regulation is saved from pre-
emption because it “regulates insurance.”

  [4] In Kentucky Association of Health Plans, Inc. v. Miller,
538 U.S. 329 (2003), the Supreme Court held that a state law
                      SGRO v. DANONE WATERS                       8059
“regulates insurance”—and is therefore saved from ERISA
preemption under section 1144—if the law is “specifically
directed toward” the insurance industry and “substantially
affect[s] the risk pooling arrangement between the insurer and
the insured.” Id. at 342.2 The California regulation certainly
meets the first part of this test because it is “specifically
directed toward” the insurance industry; by its very terms the
regulation pertains only to “insurers.”

   [5] The more difficult issue is whether the California regu-
lation also “substantially affect[s] the risk pooling arrange-
ment between the insurer and the insured.” We conclude it
does not. The regulation doesn’t require insurers to insure
against additional risks. Cf. Metropolitan Life Ins. Co. v. Mas-
sachusetts, 471 U.S. 724, 730, 758 (1985) (state law that
requires health insurers to insure against mental health prob-
lems “regulates insurance”). Nor does the regulation require
insurers to offer their insureds additional benefits in the event
that the insureds take ill. Cf. Kentucky Ass’n, 538 U.S. at 338
(state law that requires health insurers to permit their insureds
to see “any willing provider” in the state “regulates insur-
ance”). Nor does the regulation substantially affect the likeli-
hood that a disputed claim will ultimately be deemed valid.
Cf. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 361
(2002) (state law requiring HMOs to offer participants the
option of having an independent physician review a denial of
coverage “regulates insurance”); UNUM Life Ins. Co. of Am.
v. Ward, 526 U.S. 358, 364 (1999) (state law requiring insur-
ers to accept late-filed claims unless the delay prejudiced
them “regulates insurance”).

  [6] There is one way that the California regulation could
  2
    The parties rely on older Supreme Court cases that apply interpreta-
tions of the McCarran-Ferguson Act. But the Kentucky Association Court
expressly disapproved any reliance on the McCarran-Ferguson criteria, so
we do not consider them. Kentucky Ass’n, 538 U.S. at 341 (making a
“clean break from the McCarran-Ferguson factors”).
8060               SGRO v. DANONE WATERS
affect insurers’ risks: By requiring insurers to pay copying
costs, the regulation does make it slightly easier for insureds
to file claims. If that causes more insureds to file claims, and
if some of those additional claims are meritorious, then the
regulation will cause insurers to pay more benefits than they
otherwise would absent the regulation. But this possibility is
too remote and speculative to “substantially” affect the risk
pooling arrangement between insurers and their insureds.
Kentucky Ass’n, 538 U.S. at 342. Few, if any, claimants will
forgo a meritorious claim because of the relatively small
expense of copying—so few, in fact, that they are unlikely to
substantially affect the risk pool.

   [7] 3. Sgro also claims that defendants violated ERISA’s
regulation on “claims procedures,” 29 C.F.R. § 2560.503-1. If
the plan is governed by ERISA, see p. 8057 supra, the regula-
tion forbids defendants from “unduly inhibit[ing] or hamper-
[ing]” beneficiaries from claiming benefits. Id. § 2560.503-
1(b)(3). In particular, the regulation forbids defendants from
“requir[ing] payment of a fee or costs as a condition to mak-
ing a claim.” Id.

   [8] But Sgro’s copying expenses weren’t a “condition” of
making his claim. The plan merely required Sgro to provide
documentation, which is quite different from “condition[ing]”
his application on a payment. A “condition” is something
that’s required of every application; the cost of providing doc-
uments, by contrast, depends on decisions made by the bene-
ficiary and could be zero in some cases. For example, if Sgro
had copies of the documents on hand at the time he applied
for benefits, he could have submitted those copies; or, if his
doctors were willing to make copies for him for free, he could
have submitted those. In either case, he would have avoided
any additional cost. So photocopying costs weren’t a “condi-
tion” for Sgro to make a claim.

  [9] Sgro’s reading of the regulation would require plan
administrators to pay for a number of other expenses that are
                   SGRO v. DANONE WATERS                   8061
typically borne by beneficiaries. To apply for benefits, a
claimant must spend time putting together his application or
pay someone else to do so; he may require additional medical
tests; if he doesn’t speak English, he’ll need a translator; he
may need postage to mail in his application. All these are
costs incurred in claiming benefits, but none is a “condition”
of making a claim. Nothing in this regulation forbids defen-
dants from requiring Sgro to provide, at his own expense, the
documents needed to prove his disability. We therefore affirm
the dismissal of Sgro’s claim that defendants violated this reg-
ulation.

   [10] 4. Sgro also claims that he asked defendants for a
“complete copy of [his] claim file” and that defendants didn’t
fully comply with the request. In particular, Sgro alleges that
MetLife held back “claim activity records or investigation
notes” kept by MetLife’s “claims personnel.” Sgro argues that
MetLife’s failure to provide these documents violated ERISA
regulations, which require that

    a claimant shall be provided, upon request and free
    of charge, reasonable access to, and copies of, all
    documents, records, and other information relevant
    to the claimant’s claim for benefits.

29 C.F.R. § 2560.503-1(h)(2)(iii). The documents that
MetLife is alleged to have held back are “relevant,” and thus
covered by this regulation, because they were “generated in
the course of making the benefit determination.” Id.
§ 2560.503-1(m)(8)(ii). ERISA’s remedies provision gives
Sgro a cause of action to sue a plan “administrator” who
doesn’t comply with a “request for . . . information.” 29
U.S.C. § 1132(c)(1).

   [11] But there are two defendants here, and Sgro’s com-
plaint doesn’t say which one he asked for the records. See
First Amend. Compl. ¶ 24. That matters because a defendant
can’t be liable unless it received a request. See 29 U.S.C.
8062               SGRO v. DANONE WATERS
§ 1132(c)(1). As for Danone Waters, Sgro’s lawyer told the
district court that he requested the records from that company
but that his letter came back to him stamped “undeliverable
as addressed.” It’s not at all clear whose fault that was. So it
seems possible for Sgro to amend his complaint to state a
claim against Danone Waters. On remand, Sgro shall be given
leave to amend his complaint to allege that he requested these
documents from Danone Waters, if he can do so in good faith.

   [12] As for Danone Waters’s co-defendant, MetLife, the
district court properly dismissed the claim. Even if Sgro did
ask MetLife for the records, that company can’t be liable
under section 1132(c)(1). That section only gives Sgro a rem-
edy against the plan “administrator,” and MetLife isn’t the
plan administrator—Danone Waters is. This is our court’s
longstanding interpretation of section 1132(c)(1), which we
first set out in Moran v. Aetna Life Insurance Co., 872 F.2d
296, 299-300 (9th Cir. 1989).

   [13] The federal regulation was amended after we decided
Moran, and Sgro argues that the amendments overruled
Moran’s interpretation of section 1132(c)(1). See Nat’l Cable
& Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
982 (2005). But nothing in the amendments to the regulation
broadened the meaning of the word “administrator” in section
1132(c)(1) to include additional parties. The amendments
merely broadened administrators’ duties: Administrators must
now turn over, on request, the documents “generated in the
course of making the benefit determination.” See 65 Fed. Reg.
70246, 70271 (Nov. 21, 2000). Where, as here, a third party
makes the benefit determination, the administrator may not
have the needed documents on hand, so it will have to get
them from the third party. But nothing in the amendments
purports to make that third party directly liable to beneficia-
ries as if it were itself an “administrator.” We therefore
remain bound by Moran: Sgro can only sue the plan’s “ad-
ministrator,” Danone Waters. The contrary holding of DeLeon
                   SGRO v. DANONE WATERS                   8063
v. Bristol-Myers Squibb Co. Long Term Disability Plan, 203
F. Supp. 2d 1181, 1194-96 (D. Or. 2002), is overruled.

   5. Sgro seeks to represent a class of similarly situated
beneficiaries and asks for an injunction requiring defendants
to pay the class’s copying expenses. But, as described above,
Sgro hasn’t alleged facts that remove the plan from ERISA
pursuant to the safe harbor, see pp. 8057-58 supra, and
ERISA doesn’t require defendants to pay copying costs, see
pp. 8060-61 supra. Sgro therefore isn’t entitled to a class cer-
tification hearing or to an injunction. If, on remand, the dis-
trict court determines that the plan isn’t governed by ERISA,
then it will have to reconsider these questions.

                           *    *    *

   We affirm the dismissal of Sgro’s claim that defendants
violated 29 C.F.R. § 2560.503-1, and the dismissal of Sgro’s
claim against MetLife under section 1132(c)(1) for failing to
turn over the documents he requested. We also affirm the dis-
missal without prejudice of Sgro’s section 1132(c)(1) claim
against Danone Waters. We affirm the dismissal of Sgro’s
state-law claims, but vacate the dismissal with prejudice. We
remand for proceedings consistent with this opinion. All out-
standing motions are denied as moot.

 AFFIRMED in part,              VACATED        in   part   and
REMANDED. No costs.
