Brand Tarzana Surgical Institute, Inc. v. Blue Cross and Blue Shield of Illinois

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAND TARZANA SURGICAL
INSTITUTE, INC.,
Plaintiff-Appellant,
v.
BLUE CROSS AND BLUE SHIELD OF
ILLINOIS,
Defendant-Appellee.
Nos. 20-55072
D.C. No. 2:18-cv-08443-DSF-AS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted January 15, 2021**
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District
Judge.
Brand Tarzana Surgical Institute, Inc. (“Brand”) appeals the dismissal with
* 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).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prejudice of its ERISA action for failure to state a claim.1 We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
“We review de novo a district court’s order granting a motion to dismiss
under Rule 12(b)(6).” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).
We take note of Glendale Outpatient Surgery Ctr. v. United Healthcare
Servs., Case No. 19-55412, which Brand identified in its Statement of Related
Cases, and which raises “the same or closely related issues.” See Ninth Circuit
Rule 28-2.6. Though we are not bound by the outcome in that case, we find that
the complaint at issue here, identical in many respects to the complaint in
Glendale, also suffers from the same defects. See Glendale Outpatient Surgery
Ctr. v. United Healthcare Servs., 805 F. App’x 530, 531 (9th Cir. 2020). Brand
fails to allege that the plans at issue for its sixteen claims here are even ERISA
plans, and fails to allege provisions in those plans, or communications from
Defendant, that would entitle Brand to the reimbursements it claims. See Doe v.
CVS Pharmacy, Inc., 982 F.3d 1204, 1213 (9th Cir. 2020). Brand’s description of
what it was “typically” told by Defendant is not “enough to raise a right to relief
above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Finally, that Brand’s complaint involves multiple claims does not excuse it
1 Because the parties are familiar with the facts, we restate only those
necessary to explain our decision.

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from its obligation to allege enough facts to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” See id. (internal citation
omitted). Because the complaint does not “show[] that the pleader is entitled to
relief,” see Fed. R. Civ. P. 8(a)(2), the district court’s dismissal with prejudice is
AFFIRMED.

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