Edward Benton v. Baker Hughes , 623 F. App'x 888 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD BENTON, No. 13-56356
Plaintiff - Appellant, D.C. No. 2:12-cv-07735-MMM-
MRW
v.
BAKER HUGHES, a Texas Corporation; MEMORANDUM *
BAKER PETROLITE, a Texas
Corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Edward Benton appeals pro se from the district court’s judgment in his
diversity action alleging state law contract and tort claims in connection with
his chemical transportation business. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo a district court’s dismissal for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pride v.
Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). We affirm.
The district court properly dismissed Benton’s breach of an implied-in-
fact contract claim because Benton failed to allege facts sufficient to show the
existence of a valid contract. See Cal. Civ. Code §§ 1549, 1550, 1621 (defining
a contract and an implied contract, and setting forth the elements of a contract);
Amelco Elec. v. City of Thousand Oaks, 38 P.3d 1120, 1129-30 (Cal. 2002)
(elements of a breach of contract claim under California law); see also Daniels-
Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (courts need not
accept as true allegations contradicted by exhibits to the complaint).
The district court properly dismissed Benton’s intentional infliction of
emotional distress (“IIED”) claim because Benton failed to allege facts
sufficient to show that defendants acted with intent to cause or reckless
disregard of the probability of causing emotional distress. See Avina v. United
States, 681 F.3d 1127, 1131 (9th Cir. 2012) (elements of an IIED claim under
California law).
Because we affirm on the above bases, we do not consider Benton’s
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arguments concerning the timeliness of his claims.
We reject Benton’s contention that the district court erred by giving him
only 30 days to retain counsel, and defendants’ contention that this court lacks
jurisdiction over this appeal.
We do not consider issues that are not supported by argument or clearly
and distinctly raised in the opening brief. See Pierce v. Multnomah County,
Or., 76 F.3d 1032, 1037 n.3 (9th Cir. 1996) (issues not supported by argument
in pro se brief are deemed abandoned); Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994) (“We review only issues which are argued specifically and
distinctly in a party’s opening brief.”).
AFFIRMED.
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