Erik Mishiyev v. Alphabet, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK MISHIYEV, No. 20-15657
Plaintiff-Appellant, D.C. No. 3:19-cv-05422-WHA
v.
MEMORANDUM*
ALPHABET, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Erik Mishiyev appeals pro se from the district court’s judgment dismissing
his diversity action alleging state law claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Parents for Privacy v. Barr, 949
*
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). Mishiyev’s request for oral
argument, set forth in the opening and reply briefs, is denied.
F.3d 1210, 1221 (9th Cir. 2020). We affirm.
The district court properly dismissed Mishiyev’s action because Mishiyev
failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed
liberally, a plaintiff must present factual allegations sufficient to state a plausible
claim for relief); Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 575-76 (Cal.
2020) (elements of tortious interference with contractual relations and tortious
interference with prospective economic advantage claims); Oasis W. Realty, LLC
v. Goldman, 250 P.3d 1115, 1121 (Cal. 2011) (elements of a breach of contract
claim); Mintz v. Blue Cross of Cal., 92 Cal. Rptr. 3d. 422, 434 (Ct. App. 2009)
(elements of a negligence claim); Venhaus v. Shultz, 66 Cal. Rptr. 3d 432, 435-46
(Ct. App. 2007) (elements of a negligent interference with prospective economic
advantage claim); see also Erlich v. Menezes, 981 P.2d 978, 982 (Cal. 1999)
(“[C]onduct amounting to a breach of contract becomes tortious only when it also
violates a duty independent of the contract arising from principles of tort law.”).
We reject as without merit Mishiyev’s contentions regarding prejudice or
impropriety on the part of the district court, or ineffective assistance of counsel.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 20-15657
Mishiyev’s motions to supplement the record on appeal (Docket Entry Nos.
16, 18, 34) are denied.
AFFIRMED.
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