ABC SERVICES GROUP, INC., in its capacity as assignee for the benefit of creditors… v. Aetna Health and Life Insurance Company;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABC SERVICES GROUP, INC., in its
capacity as assignee for the benefit of
creditors for Morningside Recovery, LLC,
Plaintiff-Appellant,
v.
AETNA HEALTH AND LIFE
INSURANCE COMPANY; et al.,
Defendants-Appellees.
No. 20-55821
D.C. No.
8:19-cv-00243-DOC-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted October 22, 2021**
Pasadena, California
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
ABC appeals the district court’s dismissal of ABC’s ERISA, contract, and
quantum meruit claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm in
* 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).
FILED
JAN 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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part and reverse and remand in part for further proceedings.1
We review de novo the district court’s grant of the motion to dismiss under
Rule 12(b)(6), accepting as true all allegations in the complaint and construing the
facts in favor of the non-moving party. See Knievel v. ESPN, 393 F.3d 1068, 1072
(9th Cir. 2005).
I. ABC’s Contract Claims
We affirm the district court’s dismissal with prejudice of ABC’s contract
claims for insufficient pleading. ABC failed to plead “any specific provisions of the
contracts,” and attached “example plans” of the service agreements, which were
impermissible as “conclusory allegations.” ABC argues that they could not plead
the specifics of each contract because it didn’t possess all the plans at this stage of
the litigation. ABC relies heavily on a Fifth Circuit case for the proposition that the
plaintiff need not plead the contract specifics when they are in the sole possession
of Defendants. See Innova Hosp. San Antonio, LP v. Blue Cross & Blue Shield of
Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018). But assuming arguendo our court would
follow the Fifth Circuit’s rule in Innova, ABC’s reliance on Innova fails because
ABC did not even plead the specifics of the many plans it did possess. This fact
alone distinguishes ABC from the plaintiff in Innova. See id. (“[T]his is not a case
1 The parties are familiar with the facts, so we discuss them here only as necessary.

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in which the plaintiff has ready access to plan documents and fails to identify the
specific plan language at issue.”). The district court correctly dismissed ABC’s
contract claims after ABC repeatedly failed to comport with the pleading
requirements, and we affirm that decision.
II. ABC’s ERISA Claim
The district court dismissed ABC’s ERISA claims with prejudice after
determining that ABC lacked standing to bring its claims.2 In so holding, the district
court relied on Simon v. Value Behavior Health, Inc., 208 F.3d 1073, 1081 (9th Cir.
2000), overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551
(9th Cir. 2007), to conclude “[t]he Ninth Circuit has expressly declined to further
extend standing to the assignees of healthcare providers.” After the district court
issued its ruling, our court published an opinion that clarifies Simon’s holding and
the ability of an assignee to bring an ERISA cause of action.3 We therefore reverse
the district court’s dismissal of ABC’s ERISA claims and remand for further
2 On appeal, Defendants also argue that ABC’s ERISA claims should be dismissed
as improperly pled, because the operative complaint does not adequately put each
individual defendant on notice for its specific alleged actions. ABC disputes both
the proper pleading standard in this context as well as the sufficiency of the facts and
information it has alleged. The district court did not reach this issue because it was
unnecessary given the court’s dismissal of the ERISA claims on other grounds, and
we decline to address it for the first time on appeal.
3 See Bristol SL Holdings, Inc. v. Cigna Health and Life Ins. Co., No. 20-56122,
--- F.4th --- (9th Cir. Jan. 14, 2022).

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proceedings in light of this new case law.
III. ABC’s Quantum Meruit Claim
To succeed on a quantum meruit claim, ABC must prove that Defendants
requested services from ABC. See Ochs v. PacifiCare of Cal., 9 Cal. Rptr. 3d 734,
742 (Cal. Ct. App. 2 Dist. 2004) (citing Day v. Alta Bates Med. Ctr., 119 Cal. Rptr.
2d 606, 609 (Cal. Dist. Ct. App. 1 Dist. 2002)). But the record reveals that ABC
can, at most, argue that Defendants verified coverage and would allow for treatment,
not that ABC took the additional step of explicitly requesting such service. The
district court correctly dismissed ABC’s claim on this basis.4
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
4 ABC filed two motions to take judicial notice (Docs. 32, 70). Because these
motions are unopposed and comply with Federal Rule of Evidence 201, we grant
both motions.

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