NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 27 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RED REAPER, AKA Brett C. Huska, No. 23-15178

Plaintiff-Appellant, D.C. No. 4:21-cv-05876-HSG

v.

MEMORANDUM*

ACE AMERICAN INSURANCE

COMPANY,

Defendant-Appellee,

and

NATIONAL MARROW DONOR

PROGRAM,

Defendant.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted February 13, 2024** San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiff-Appellant Red Reaper appeals from the district court’s order

dismissing his second amended complaint without leave to amend. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the grant of a motion to dismiss. Douglas v. Noelle, 567

F.3d 1103, 1106 (9th Cir. 2009). We first separate the conclusory allegations in

the complaint from the well-pleaded factual allegations, and next determine

whether those well-pleaded allegations, taken as true, state a plausible “entitlement

to relief.” Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996

(9th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

1. The district court properly disregarded most of the allegations made on

information and belief because they were conclusory. See Moss v. U.S. Secret

Serv., 572 F.3d 962, 970 (9th Cir. 2009). The second amended complaint

contained no facts supporting the bare allegations that Defendant-Appellee ACE

“authorized and instructed” the National Marrow Donor Program (“the Program”)

to act as its agent, to act as a claims administrator and make coverage

representations on ACE’s behalf, to tell Reaper he did not have a valid insurance

claim, or that ACE knew the Program was “making representations about disability

claims on its behalf.” Absent further factual enhancement, these allegations were

not entitled to the assumption of truth. See Iqbal, 556 U.S. at 680–81. We reject

Reaper’s apparent contention that this court’s opinion in Soo Park v. Thompson,

2 851 F.3d 910 (9th Cir. 2017), created an exception to federal pleading standards

for allegations made on information and belief.

2. The district court properly dismissed Reaper’s claims as time-barred because

absent the conclusory allegations, Reaper failed to plausibly allege an actual or

ostensible agency relationship between ACE and the Program.1 Reaper did not

plead facts supporting his allegations that ACE consented to the Program acting on

its behalf and subject to its control, or that the Program consented to so act. See

Hoffmann v. Young, 515 P.3d 635, 646 (Cal. 2022). Absent those allegations, he

did not plausibly allege an actual agency relationship. See id.

Reaper also failed to plausibly allege ostensible agency because he did not

plead facts supporting his allegation that ACE, by its own acts or negligence,

caused him to believe that the Program had authority to act on its behalf. See

Baxter v. State Tchrs.’ Ret. Sys., 227 Cal. Rptr. 3d 37, 56 (Ct. App. 2017).

Reaper’s allegations that ACE provided the Program with claim forms and that the

Program told Reaper it “acted on behalf of” ACE are at best “consistent with”

ostensible agency, but “stop[] short of the line between possibility and

1 We decline to consider the declarations Reaper filed in the district court. “In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). But even if we considered the declarations, they do not support the existence of an agency relationship between ACE and the Program.

3 plausibility.” Moss, 572 F.3d at 969 (quoting Iqbal, 556 U.S. at 678).

That ACE gave claim forms to the Program is insufficient to establish an

ostensible agency relationship. Unlike in Preis v. American Indemnity Co., 269

Cal. Rptr. 617, 619, 623–24 (Ct. App. 1990), the forms in this case did not

ostensibly bind ACE to provide coverage. Donors submitted claims through the

forms, but ACE retained authority to reject or accept a claim once it received the

forms. Thus, when ACE provided the Program with claim forms, it did not enable

the Program to represent itself “as clothed with certain authority” to act on behalf

of ACE. Valentine v. Plum Healthcare Grp., LLC, 249 Cal. Rptr. 3d 905, 914 (Ct.

App. 2019) (quoting Chi. Title Ins. Co. v. AMZ Ins. Servs., Inc., 115 Cal. Rptr. 3d

707, 728 (Ct. App. 2010)).

AFFIRMED.

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