Eugene Debons v. Globus Medical, Inc.

MEMORANDUM

Eugene DeBons appeals from the district court’s judgment dismissing his putative class action alleging various claims under California statutory, tort, and contract law. We have jurisdiction under 28 U.S.C. § 1291 . We review the dismissal de novo, Lilly v. ConAgra Foods, Inc., 743 F.3d 662, 664 (9th Cir. 2014), and we affirm.

The Federal Food, Drug, and Cosmetic Act (“FDCA”) “leaves no doubt that it is the Federal Government rather than private litigants who [is] authorized to file suit for noneompliance with the medical device provisions.” Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 , 349 n.4, 121 S.Ct. 1012 , 148 L.Ed.2d 854 (2001) (citing 21 U.S.C. § 337 (a)). Based on this language, we have held that there is - a “narrow gap through which a state-law claim must fit to escape preemption by the FDCA: The plaintiff must be suing for conduct that violates the FDCA (or else his claim is expressly preempted by [21 U.S.C. § 360k(a)]), but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman).” Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1120 (9th Cir. 2013) (citation omitted). With the…