Omni Innovations LLC v. Inviva Inc

MEMORANDUM

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 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 L.P., 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…