                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 13 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AARON FILLER, MD, PHD, APC,                     No. 13-55268

              Plaintiff - Appellant,            D.C. No. 2:12-cv-08760-CAS-
                                                JEM
  And

NEUROGRAPHY INSTITUTE                           MEMORANDUM*
MEDICAL ASSOCIATES, APC, a
California corporation; IMAGE BASED
SURGICENTER, INC., a California
corporation,

              Plaintiffs,

  v.

BLUE CROSS OF CALIFORNIA, DBA
Anthem Blue Cross, erroneously sued
separately as Anthem Blue Cross and Blue
Cross of California; ANTHEM BLUE
CROSS LIFE AND HEALTH
INSURANCE COMPANY,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Christina A. Snyder, District Judge, Presiding

                          Submitted February 11, 2015**
                              Pasadena, California

Before: SENTELLE,*** CHRISTEN, and HURWITZ, Circuit Judges.

      Dr. Aaron Filler, the Image Based Surgicenter, Inc., and Neurography Institute

Medical Associates, APC (collectively, “Filler”) appeal the dismissal of their

complaint against Blue Cross of California, Anthem Blue Cross, and Anthem Blue

Cross Life and Health Insurance Company (collectively, “Blue Cross”). On appeal,

Filler challenges only the subject matter jurisdiction of the district court over this

removed action. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      1. Section 502(a)(1)(B) of the Employee Retirement Income Security Act of

1974, Pub. L. No. 93-406, 88 Stat. 829, 891 (“ERISA”), provides that “[a] civil action

may be brought—(1) by a participant or beneficiary— . . . (B) to recover benefits due

to him under the terms of his plan, to enforce his rights under the terms of the plan,

or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §

1132(a)(1)(B). If a plaintiff asserting a state law cause of action “at some point in


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.
Court of Appeals for the District of Columbia Circuit, sitting by designation.

                                          2
time, could have brought his claim under ERISA § 502(a)(1)(B),” and “there is no

other independent legal duty that is implicated by a defendant’s actions,”

§ 502(a)(1)(B) completely preempts the state cause of action. Aetna Health Inc. v.

Davila, 542 U.S. 200, 210 (2004).

      2. District court jurisdiction was not defeated by Filler’s alleged lack of federal

standing. As an assignee of his patients’ ERISA benefits, Filler had both Article III

standing and statutory standing to sue, notwithstanding the anti-assignment clauses

in the patients’ insurance contracts. See Spinedex Physical Therapy USA Inc. v.

United Healthcare of Ariz., Inc., 770 F.3d 1282, 1288-91, 1296-97 (9th Cir. 2014);

Davidowitz v. Delta Dental Plan of Cal., Inc., 946 F.2d 1476, 1477, 1481 (9th Cir.

1991); see also City of Hope Nat’l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223, 228

(1st Cir. 1998).

      3.   Filler’s state law claims for negligent entrustment, conversion, and

interference with contractual relations were completely preempted under

§ 502(a)(1)(B). The claims were premised on recovering money owed to Filler’s

patients under an ERISA benefits plan, and thus fell “within the scope of ERISA

§ 502(a).” See Fossen v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102,

1110 (9th Cir. 2011). The independent legal duties Filler alleged were merely

attempts to “‘obtain relief by dressing up an ERISA benefits claim in the garb of a


                                           3
state law tort.’” Id. at 1110-11 (quoting Cleghorn v. Blue Shield of Cal., 408 F.3d

1222, 1225 (9th Cir. 2005)). Thus, the district court had subject matter jurisdiction

under the general federal question statute, 28 U.S.C. § 1331.

      4.   Because this appeal challenges only the district court’s subject matter

jurisdiction, we express no opinion on the merits of the dismissed or remanded claims.

      AFFIRMED.




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