                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 28 2011

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



                            FOR THE NINTH CIRCUIT


CITY OF HOPE NATIONAL MEDICAL                    No. 09-56236
CENTER, a California non-profit public
benefit corporation,                             D.C. No. 2:09-cv-03097-RGK-RC

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

AFL HOTEL & RESTAURANT
WORKERS’ HEALTH & WELFARE
PLAN, a voluntary employees’ benefit
association,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                              Submitted July 15, 2011
                                Pasadena, California

Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      City of Hope National Medical Center appeals the district court’s dismissal

of its complaint against AFL Hotel & Restaurant Workers’ Health & Welfare Plan

on the ground that its claims were preempted by the Employee Retirement Income

Security Act (ERISA). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

reverse and remand.

      The district court determined that City of Hope’s common law claims were

preempted under the “conflict preemption” clause of ERISA, which provides that

ERISA shall generally “supersede any and all State laws insofar as they may now

or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). The parties

do not contest the district court’s determination that the AFL plan at issue is an

“employee benefit plan” under ERISA.

      A common law claim relates to an employee benefit plan governed by

ERISA “‘if it has a connection with or reference to such a plan.’” New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,

656 (1995) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983)).

      Accepting the allegations in City of Hope’s complaint as true, as we must at

this stage, City of Hope alleges the existence of its own contract with and

representations from AFL. City of Hope brings suit on that basis and not as an

assignee of benefits under an ERISA plan. See Cedars-Sinai Med. Ctr. v. Nat’l


                                          2
League of Postmasters of the U.S., 497 F.3d 972, 977 (9th Cir. 2007); Blue Cross

of Cal. v. Anesthesia Care Assocs. Med. Group, Inc., 187 F.3d 1045, 1052-54 (9th

Cir. 1999); The Meadows v. Employers Health Ins., 47 F.3d 1006, 1008-09 (9th

Cir. 1995).

      On the basis of the pleadings and record before us, we cannot determine that

these claims nonetheless “relate to” an ERISA plan so as to be preempted under 29

U.S.C. § 1144(a). The alleged contract between City of Hope and AFL was not

supplied by either party. Nor was the ERISA plan. The complaint alleges very

little information about the contract and representations at issue. There is therefore

not a basis for concluding that the claims were preempted at the pleading stage.

We remand for further proceedings, but do not foreclose the possibility that AFL

may establish preemption under § 1144(a) upon a more developed record.

      REVERSED AND REMANDED.




                                          3
