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January 31, 1996


The opinion of the court was delivered by: PATEL

 Plaintiffs, Patricia and Albert Roessert, participants in Bank of America's ("BOA") employee health benefits program, filed a complaint in Contra Costa Superior Court alleging general and medical negligence in defendants' treatment of Patricia Roessert. Defendants Hill and Health Net timely removed to this court pursuant to 28 U.S.C. § 1446(a) on the grounds that the claims against them were preempted by the Employee Retirement Income Security Act of 1974 ("ERISA") and that ERISA confers federal question jurisdiction on this court. Now before the court are motions by all the named defendants to dismiss the amended complaint for failure to state a claim and a cross-motion by plaintiffs to remand the action to state court.

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.


 Patricia and Albert Roessert both worked for BOA when BOA contracted with Health Net to provide medical and health insurance coverage to its employees. Plaintiffs do not dispute that the BOA plan is an employee benefit plan governed by ERISA. Health Net is a federally qualified Health Maintenance Organization ("HMO") and a California health care service plan composed of a network of community medical groups. Hill Physicians Medical Group ("Hill") is a participating medical group ("PMG"). A PMG is a group of physicians which has an agreement with Health Net to furnish care to Health Net subscribers. Each Health Net subscriber is required to select a PMG. The relationship between Health Net and the PMG is that of an independent contractor; PMG member physicians and other professionals are not agents or employees of Health Net.

 Patricia and Albert Roessert became Health Net members in 1992 and selected Hill as their medical group under the Health Net plan. In early 1993, Mrs. Roessert began suffering from fatigue and depression and was initially treated by her primary care physician, Dr. O'Connor. According to the amended complaint, by late 1993 Mrs. Roessert was markedly worse and in December of that year Dr. O'Connor referred her to Hill for treatment of chronic fatigue syndrome ("CFS"). Hill, in turn, referred the Roesserts to Pacific Applied Psychology Associates, where Mrs. Roessert saw psychiatrist Dr. Wang. At that time Dr. Wang prescribed medication for Mrs. Roessert which apparently exacerbated her problems. Plaintiffs allege that when Mrs. Roessert asked Dr. Wang to modify the dosage or change the medication he refused. Mrs. Roessert then sought a referral to another psychiatrist and, according to plaintiffs, Hill could not provide one and suggested they look at another PMG.

 Sometime in 1994 Mrs. Roessert was diagnosed with CFS and placed on disability. She was also referred to Dr. Rest, a member of Alta Bates Medical Group and a specialist in CFS (the amended complaint does not identify who referred the Roesserts to Dr. Rest). At this time, Health Net indicated to the Roesserts that a change in primary physicians would require a change in medical groups. According to the complaint, plaintiffs switched to Alta Bates at the direction of Health Net.

 On July 1, 1994 Mrs. Roessert met with Dr. Rest. The complaint asserts that Dr. Rest treated her rudely and refused to accept her as a patient because Alta Bates' repayment practices were inadequate and he could not afford new CFS patients. Subsequent to this visit, Mrs. Roessert apparently became more despondent and withdrawn, causing Mr. Roessert to contact Health Net to complain of Dr. Rest's conduct and to switch back to Hill. Health Net allegedly refused to authorize the switch.

 According to plaintiffs, on September 9, 1994, someone at Health Net, unprompted by the Roesserts, directed Hill to contact the Roesserts for the purpose of committing Mrs. Roessert to a psychiatric institution. That same day, a Hill physician, Dr. Philipson, called Mr. Roessert at home to say she was calling to assist in committing Mrs. Roessert due to suicidal tendencies. Dr. Philipson also left a message to that effect at the Roessert home. Mr. Roessert called Health Net and was unable to receive an explanation for the conduct of either Hill or Dr. Philipson, but apparently was told that a nurse at Health Net might have contacted Hill about Mrs. Roessert.

 Health Net denies this account. Health Net maintains that on September 9, 1994 Mr. Roessert had a lengthy telephone conversation with Health Net Personnel about Mrs. Roessert's condition and his dissatisfaction with her medical care. Health Net admits to contacting Hill on September 9, 1994 to ask them to provide care to Mrs. Roessert. Health Net denies that it ever instructed anyone to commit Mrs. Roessert.

 Thereafter, the Roesserts filed an action against defendants in Contra Costa Superior Court alleging negligence and fraud. Defendants removed to federal court on the basis of ERISA preemption and proceeded to file motions to dismiss for failure to state a claim, to dismiss Mr. Roessert for lack of standing and for summary judgment. At a hearing on these motions, this court continued the motions and directed the parties to a magistrate judge to discuss settlement and to assist plaintiffs, who were pro se, in understanding the process and the viability of their claims in the event the parties could not settle. A settlement was not reached and on October 30, 1995, plaintiffs, who were able to obtain counsel in the interim, filed an amended complaint. *fn2" The amended complaint alleges medical negligence and negligent and intentional infliction of emotional distress against all the defendants. The previously pending motions are rendered moot and the court will address only the current motions based on the amended complaint.


 A motion to dismiss will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.), cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).


 With the exception of Dr. Rest, who bases his motion to dismiss on the plaintiffs' failure to adequately allege state law claims, the defendants contend that all the actions complained of were taken in the context of administering benefits under an employee benefit plan and are preempted by ERISA. The Roesserts maintain that their complaint is based on the quality of medical care provided by defendants, is unrelated ...

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