Foster Taft v. Nabisco , 675 F. App'x 796 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOSTER TAFT, No. 15-56218
Plaintiff-Appellant, D.C. No. 2:15-cv-02685-DSF-
MRW
v.
NABISCO; et al., MEMORANDUM*
Defendants-Appellees,
and
ALTRIA GROUP INC.; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Foster Taft appeals pro se from the district court’s judgment dismissing his
*
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).
diversity action alleging a strict liability claim. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a district court’s dismissal under Federal Rule
of Civil Procedure 12(b)(6). Ileto v. Glock Inc., 349 F.3d 1191, 1199 (9th Cir.
2003). We affirm.
The district court properly dismissed Taft’s claims against defendants
Mondelez International, Inc., Kraft Foods Group, Inc., and General Mills, Inc.,
because Taft failed to allege facts sufficient to “state a claim that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Barker v. Lull Eng’g Co., 573 P.2d 443,
446 (Cal. 1978) (product design is defective if “product has failed to perform as
safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner,” or (2) “the benefits of the challenged design do
not outweigh the risk of danger inherent in such design”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Taft’s request to augment the record, filed on May 10, 2016, is denied.
AFFIRMED.
2 15-56218