John Quain v. Capstar , 453 F. App'x 702 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 7 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN R. QUAIN, No. 10-17508
Plaintiff - Appellant, D.C. No. 2:09-cv-02365-DGC
v.
MEMORANDUM *
CAPSTAR, dba Clear Channel
Communications, Inc.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
John R. Quain appeals pro se from the district court’s judgment dismissing
his diversity action alleging breach of contract, misrepresentation, and unjust
enrichment. We have jurisdiction under 28 U.S. C. § 1291. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the district court’s dismissal of a complaint for failure to state a claim, see Cook v.
Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011), and for an abuse of discretion its
denial of leave to amend, see Gordon v. City of Oakland 627 F.3d 1092, 1094 (9th
Cir. 2010). We affirm.
The district court properly dismissed Quain’s breach of contract claim
because Quain failed sufficiently to allege that he was an intended third-party
beneficiary of the Consent Decree between the Federal Communications
Commission and Clear Channel. See United States v. FMC Corp., 531 F.3d 813,
820-21 (9th Cir. 2008) (when the government is party to a consent decree, there is
a presumption that members of the public are not intended beneficiaries); see also
Norton v. First Fed. Sav., 624 P.2d 854, 856 (Ariz. 1981) (for a person to recover
as a third-party beneficiary of a contract, an intention for that person to benefit
must be indicated in the contract itself).
The district court properly dismissed Quain’s misrepresentation claim
because Quain failed sufficiently to allege that defendants made a false
representation to him, that defendants intended that he rely on the purported
misrepresentation, or that his reliance was justified. See Haisch v. Allstate Ins.
Co., 5 P.3d 940, 944 (Ariz. Ct. App. 2000) (stating elements of misrepresentation
under Arizona law).
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The district court properly dismissed Quain’s unjust enrichment claim
because Quain failed sufficiently to allege a connection between defendants’
enrichment and Quain’s impoverishment. See Cmty. Guardian Bank v. Hamlin,
898 P.2d 1005, 1008 (Ariz. App. 1995) (stating elements of unjust enrichment
under Arizona law).
The district court did not abuse its discretion by denying Quain leave to
amend his complaint for the fourth time. See Gordon, 627 F.3d at 1094 (district
court may deny a plaintiff leave to amend if it determines that allegation of other
facts consistent with the challenged pleading could not possibly cure the
deficiency).
We do not consider Quain’s claims that he did not raise in the operative
second amended complaint. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th
Cir. 2008).
Quain’s remaining contentions are unpersuasive.
We deny Quain’s motion for change of venue as moot.
AFFIRMED.
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