# Parrino v. FHP, Inc. > Court of Appeals for the Ninth Circuit · June 12, 1998 · 146 F.3d 699 URL: https://www.frixlaw.com/law-library/cases/6969959 ## Case - **Full name:** Nick PARRINO, as Administrator of the Estate of Stephen Frank Parrino, and successor to Steve Parrino, D.C. v. FHP, INC., a California Corp. FHP Healthcare, a California Corp., aka FHP Value Plan FHP Administrators, a Division of Ultralink Inc., a California Corporation Friendly Hills Healthcare Network, a California non-profit corporation, dba Friendly Hills Regional Medical Center Friendly Hills Medical Group, a general partnership Friendly Hills Regional Medical Center Guild, Inc., a California non-profit corporation Rem Almirante, M.D., an individual Jeffrey Wolf, M.D., an individual - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 12, 1998 - **Citations:** 146 F.3d 699; 98 Daily Journal DAR 6195; 22 Employee Benefits Cas. (BNA) 1707; 98 Cal. Daily Op. Serv. 4491; 1998 U.S. App. LEXIS 12517; 1998 WL 309146 - **Precedential status:** Published - **Opinion:** Dissent by Fernandez - **Judges:** Browning, Brunetti, Fernandez - **Cited by:** 541 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Antonio Abrego Abrego v. The Dow Chemical Co Shell Oil Company, D/B/A Shell Chemical Company, and Shell Agricultural Chemical Company. - Negative treatments: 2 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6969959 ## How later opinions describe it (automated extraction) - holding that the district court properly considered doc- uments attached to a motion to dismiss that described the terms of plaintiff’s group health insurance plan, where plain- tiff alleged membership in the plan, his claims depended on the conditions described in the documen… - holding that the district court properly considered documents attached to a motion to dismiss that described the terms of plaintiff's group health insurance plan, where plaintiff alleged membership in the plan, his claims depended on the conditions described in the documents, … - stating that where a defendant attaches a document to a Rule 12(b)(6) motion that “is integral to the plaintiffs claims and its authenticity is not disputed, the plaintiff obviously is on notice of the contents of the document and the need for a chance to refute evidence is gr… - holding district court properly considered 20 documents attached to a motion to dismiss that described the terms of a group health insurance 21 plan, where plaintiff’s claims depended on the conditions described in the documents and plaintiff 22 never disputed their authenticity - stating that, in ruling on motion to dismiss, district court may consider document not explicitly incorporated in complaint and not attached to complaint, but authenticity of which is not questioned and on which complaint necessarily relies ## Opinion text FERNANDEZ, Circuit Judge, Dissenting. I am unable to agree with the majority because in my opinion the removal of this case was improper. Friendly Hills was required to join in the removal request within a thirty-day period. See 28 U.S.C. § 1446 (a)-(b). It did not do so. That failure made removal improper, the case should have been remanded, and it should be remanded now. Thus, I do not actually reach the ultimate merits or join in any part of the majority opinion, although I would be inclined to agree that Parrino should not ultimately prevail. FHP argues that Caterpillar Inc. v. Lewis, 519 U.S. 61 , 117 S.Ct. 467 , 136 L.Ed.2d 437 (1996), stands for the proposition that as long as the removal defect was cured sometime before the district court reached its final decision to dismiss, the ease should not be remanded. I disagree. Caterpillar dealt with a situation where a jurisdictional defect was cured and a case proceeded through the long pretrial process and into a full blown jury trial. See id. at -, 117 S.Ct. at 470-71 . The Court recognized the arguments against permitting the result of that trial to stand. As it said, the “arguments are hardly meritless.” Id. at -, 117 S.Ct. at 476 . But, it continued, “[ojnce a diversity case has been tried in federal court, with rules of decision supplied by state law ... considerations of finality, efficiency, and economy become overwhelming.” Id. That simply is not the ease here, and I do not agree with extending Caterpillar to a case which was merely disposed of on a motion under Federal Rule of Civil Procedure 12(b)(6). The closest any court has come to that is a case where judgment was entered in a tag along matter in coordinated multidistrict litigation. There the court emphasized the need for finality in disposing of a matter which was “analytically indistinguishable” from others it had decided. See Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230 (8th Cir.1997). But a decision which is more closely in point remanded a removed case because “there ha[d] been no trial, and no further judicial resources ha[d] been expended on this case since the Order denying remand.” Arnold v. Blue Cross & Blue Shield of Texas, Inc., 973 F.Supp. 726, 743-44 (S.D.Tex.1997). That was true, even though attorney resources had been expended. See id. at 744 n. 32. It seems to me that extending Caterpillar to this case simply elides the procedures set forth in § 1446 and replaces them with a rule that the district court may, in its discretion, decline to remand when those procedures are not complied with. I cannot' agree with that reading of the statute or of Caterpillar. I do not believe that reading is; in the long run, designed to enhance economy or efficiency. It is designed to enhance interference with state court proceedings, district court amendment of the removal statutes, and unnecessary appeals. Thus, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6969959. Public record. Not legal advice.