                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PAUL BLAKNEY,                                   No.    19-35654

                Plaintiff-Appellant,            D.C. No. 3:18-cv-00098-TMB

 v.
                                                MEMORANDUM*
MADHU PRASAD, M.D.; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                           for the District of Alaska
               Timothy M. Burgess, Chief District Judge, Presiding

                           Submitted August 11, 2020**
                               Anchorage, Alaska

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.

      Paul Blakney appeals the district court’s dismissal of his declaratory judgment

action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1132(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      This action relates to an ongoing medical malpractice lawsuit in Alaska state

court, wherein Blakney alleged that Dr. Madhu Prasad, Far North Surgery &

Surgical Oncology P.C., and Galen Alaska Hospital, Inc. provided negligent medical

treatment to Blakney. In its answer to the complaint, Galen Alaska Hospital, Inc.

asserted as an affirmative defense that Blakney’s damages are limited under section

09.55.548(b) of the Alaska Statutes. In April 2018, Blakney filed an action in federal

court seeking a declaratory judgment that the affirmative defense asserted in the state

court action is preempted by ERISA.

      If a state law claim is completely preempted by ERISA § 502(a), then federal

courts have federal question subject matter jurisdiction. See Fossen v. Blue Cross

& Blue Shield of Mont., Inc., 660 F.3d 1102, 1107 (9th Cir. 2011) (“Conflict

preemption under ERISA § 502(a) . . . confers federal subject matter jurisdiction for

claims that nominally arise under state law. . . . Ordinarily, federal question

jurisdiction does not lie where a defendant contends that a state-law claim is

preempted by federal law. . . . But state-law claims may be removed to federal court

if the ‘complete preemption’ doctrine applies.” (citations omitted)); see also Mack

v. Kuckenmeister, 619 F.3d 1010, 1021 (9th Cir. 2010) (“Where [ERISA

preemption] is raised as a defense in a case that does not otherwise arise under

ERISA, state courts retain jurisdiction over the case and over the preemption




                                          2
question.”). Here, Blakney cannot establish that his state law medical malpractice

claims are completely preempted.

       “[A] state-law cause of action is completely preempted if (1) an individual,

at some point in time, could have brought the claim under ERISA § 502(a)[], and (2)

where there is no other independent legal duty that is implicated by a defendant’s

actions.” Fossen, 660 F.3d at 1107–08 (quoting Marin Gen. Hosp. v. Modesto &

Empire Traction Co., 581 F.3d 941, 946 (9th Cir. 2009)). For a state law cause of

action to be preempted, both prongs of the test must be satisfied. Marin Gen., 581

F.3d at 947.

      Even if the first prong was satisfied, it is clear that the second prong is not, as

the duties implicated in Blakney’s state law medical malpractice claims do not derive

from ERISA. The tort duties at issue in the state law claims would exist regardless

of whether an ERISA plan existed. See Depot, Inc. v. Caring for Montanans, Inc.,

915 F.3d 643, 665–67 (9th Cir. 2019). Therefore, Blakney’s medical malpractice

claims are not completely preempted, and the district court correctly dismissed for

lack of subject matter jurisdiction.

      AFFIRMED.




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