Omni Innovations LLC v. Inviva Inc

FILED
NOT FOR PUBLICATION NOV 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES SAMUEL GORDON, Jr., a No. 10-35283
married individual,
D.C. No. 2:06-cv-01537-JCC
Plaintiff - Appellant,
v. MEMORANDUM *
INVIVA INC, a Kentucky and Delaware
corporation doing business as American
Life Direct and American Life Insurance
Co of New York; JOHN DOES, I-X,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
James Samuel Gordon, Jr., appeals pro se from the district court’s judgment
on the pleadings in his action alleging that defendants’ transmission of unsolicited
*
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).
commercial email or spam violated federal and state statutes. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Dunlap v. Credit Prot. Ass’n LP, 419
F.3d 1011, 1012 n.1 (9th Cir. 2005) (per curiam), and may affirm on grounds
supported by the record, Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th
Cir. 2009). We affirm.
The district court properly granted judgment on the pleadings as to Gordon’s
claim under the Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003 (the “CAN-SPAM Act”) because he lacks standing to sue
under the Act. See Virtumundo, 575 F.3d at 1051-57 (explaining in analogous
context that Gordon lacks standing to file a private lawsuit under the CAN-SPAM
Act because he is not an adversely affected, bona fide Internet access provider).
Judgment on the pleadings on the basis of preemption was proper as to
Gordon’s claim under the Washington Commercial Email Marketing Act (the
“CEMA”) because he did not allege the fraud or deception necessary to exempt the
claim from the CAN-SPAM Act’s preemption clause. See id. at 1062-64 (CEMA
claim alleging non-deceptive, immaterial inaccuracies or incomplete, omitted
information in spam emails is preempted by the CAN-SPAM Act, which only
exempts from preemption those state laws that narrowly regulate fraudulent or
deceptive commercial emails).
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Judgment on the pleadings was proper as to Gordon’s claim under the
Washington Consumer Protection Act (the “CPA”) because Gordon did not
establish several elements of such a claim as a matter of law. See Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins., 719 P.2d 531, 535-37 (Wash. 1986)
(listing CPA claim elements); see also Virtumundo, 575 F.3d at 1065-66 (Gordon
failed to establish elements of nearly identical CPA claim).
Gordon’s remaining contentions are unpersuasive.
We deny as moot Gordon’s renewed motion to correct the district court
record by adding additional pleadings. However, in light of Gordon’s pro se
status, we have considered all submitted documents.
AFFIRMED.
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