FILED

NOT FOR PUBLICATION MAR 10 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAI WEAVER, on behalf of herself and No. 08-17512 all others similarly situated, D.C. No. 3:08-00037-LRH-VPC Plaintiff - Appellant,

v. MEMORANDUM *

AETNA LIFE INSURANCE COMPANY,

et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted February 12, 2010 San Francisco, California

Before: GOODWIN, BERZON and IKUTA, Circuit Judges.

Kai Weaver appeals from the judgment dismissing without prejudice under

Fed. R. Civ. P. 12(b)(6) her first amended, class-action complaint alleging financial

injury to class members, who purchased a group life-insurance policy from Aetna

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Life Insurance Company, administered by Western Insurance Specialities, Inc.

The alleged loss is premiums paid, commencing in 2004, for the group policy that

allegedly was not finalized until 2006. This court reviews a district court’s

dismissal under Fed. R. Civ. P. 12(b)(6) de novo and “can affirm on any ground

supported by the record.” Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008).

Standing is the “essential and unchanging part of the case-or-controversy

requirement of Article III” for a plaintiff’s case. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). “A plaintiff must allege personal injury fairly traceable

to the defendant’s allegedly unlawful conduct and likely to be redressed by the

requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)

(citation and internal quotation marks omitted). Although economic injury can

satisfy Article III injury-in-fact, see Clinton v. City of New York, 524 U.S. 417,

432-33 (1998), Weaver did not allege that she made a claim for which payment

was not received during the time that she paid premiums or that the policy for

which she and other members of the purported class paid was worth less than they

paid for it; she excluded from the class all insureds who received benefits

payments for claims on the group policy. Thus, she has failed to show that she did

not receive the benefit of the group-insurance contract or that the policy did not

2 exist, because benefits were paid to insureds who made claims. Therefore, Weaver

has shown no injury-in-fact to support standing. Similarly, to proceed in federal

court, Weaver’s state-law claims have failed to “meet the stricter federal standing

requirements of Article III.” Cantrell v. City of Long Beach, 241 F.3d 674, 683

(9th Cir. 2001).

Weaver’s allegations that the group-insurance policy did not meet formation

requirements implicate compliance with Nevada regulatory insurance law. Any

right to relief for Weaver’s claims alleging violation of the Nevada Insurance Code

resides exclusively with the Insurance Commissioner, Nev. Rev. Stat. §

686A.015(1), and the Nevada Supreme Court has held that there can be no private

right of action related to the regulatory requirements for insurers in Nevada.

Allstate Ins. Co. v. Thorpe, 170 P.3d 989, 994 (Nev. 2007); accord Baldonado v.

Wynn Las Vegas, LLC, 194 P.3d 96, 104 n.32 (Nev. 2008) (confirming Thorpe that

the exclusive jurisdiction of the Insurance Commissioner precludes a private cause

of action). Federal courts in diversity cases “are bound by the pronouncements of

the state’s highest court on applicable state law” and cannot review by declaratory

judgment Nevada insurance law. Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d

931, 939 (9th Cir. 2001).

AFFIRMED.

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FILED

Weaver v. Aetna Life Insurance Company, 08-17512 MAR 10 2010

MOLLY C. DWYER, CLERK

BERZON, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree that the judgment of the district court should be affirmed.

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