-

NOT FOR PUBLICATION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. 22-55631 

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 3, 2023**

Pasadena, California

Before: GRABER, MENDOZA, and DESAI, Circuit Judges.

Plaintiff ABC Services Group, Inc., appeals the district court’s dismissal with 

prejudice of its second amended consolidated complaint. We have jurisdiction under 

* 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

OCT 6 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal 

Rule of Civil Procedure 12(b)(6), DB Healthcare, LLC v. Blue Cross Blue Shield of 

Ariz., Inc., 852 F.3d 868, 873 n.5 (9th Cir. 2017), and we review for an abuse of 

discretion the district court’s denial of leave to amend, Or. Clinic, PC v. Fireman’s 

Fund Ins., 75 F.4th 1064, 1073 (9th Cir. 2023). We affirm. 

1. The district court did not err by dismissing Plaintiff’s complaint under 

Rule 12(b)(6) because (1) Plaintiff lacks derivative authority to sue under the 

Employee Retirement Income Security Act of 1974 (“ERISA”), and (2) Plaintiff 

failed to plead ERISA claims sufficiently.

First, Plaintiff lacks derivative authority to bring ERISA claims as a second 

assignee. Under 29 U.S.C. § 1132(a)(1)(B), only a “participant or beneficiary” has 

authority to sue to recover ERISA benefits. An exception allows health care 

providers to sue on their patients’ behalf if the patients assign their claims to the 

provider in exchange for health care. That exception furthers ERISA’s purpose of 

protecting employees’ rights to health benefits. Simon v. Value Behav. Health, Inc., 

208 F.3d 1073, 1081 (9th Cir. 2000), overruled on other grounds by Odom v. 

Microsoft Corp., 486 F.3d 541 (9th Cir. 2007). But where, as here, a health care 

provider reassigns its patients’ claims to a non-provider third party that has no 

relationship to the patients, the third party cannot file those claims on behalf of the 
3 

patients. Id.

1 Because allowing this type of transaction “would be tantamount to 

transforming health benefit claims into a freely tradable commodity,” id., Plaintiff 

lacks authority to sue.

Second, even if Plaintiff had authority to sue, it failed to plead ERISA claims

adequately. After years of litigation and multiple amended complaints, Plaintiff 

asserts near-identical, generalized allegations on information and belief against all 

Defendants. But the allegations do not identify any Defendant’s particular plan terms 

conferring a benefit on patients, nor do they specify any Defendant’s particular 

conduct in denying such a benefit. See, e.g., Doe v. CVS Pharmacy, Inc., 982 F.3d 

1204, 1213 (9th Cir. 2020) (holding that, to plead a claim under 29 U.S.C. 

§ 1132(a)(1)(B), a “plaintiff must allege ‘the existence of an ERISA plan,’ and 

identify ‘the provisions of the plan that entitle [the plaintiff] to benefits’” (quoting 

Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 

1110, 1155 (C.D. Cal. 2015))). Plaintiff need not recite every relevant term of every 

relevant plan, but it must do more than broadly allege that dozens of insurers with 

distinct plans all violated the same generalized obligation to reimburse mental health 

1 Plaintiff argues that this court should apply Bristol SL Holdings, Inc. v. Cigna 

Health & Life Ins. Co., 22 F.4th 1086 (9th Cir. 2022), to expand third-party 

derivative authority to bring ERISA claims. But Bristol only “modest[ly]” extended 

derivative authority to a health care provider’s successor-in-interest through 

bankruptcy proceedings under “unique circumstance[s]” that do not exist here. Id. at 

1091, 1092. 
4 

and substance abuse treatment. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(holding that Rule 8’s pleading standard “does not require ‘detailed factual 

allegations,’” but it “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 

(2007))).

2. The district court did not abuse its discretion by denying leave to 

amend. Plaintiff forfeited any challenge to the district court’s denial of leave to 

amend by failing to raise the issue in its opening brief. Smith v. Marsh, 194 F.3d 

1045, 1052 (9th Cir. 1999). 

AFFIRMED.