JAMES SAMUEL GORDON, Jr. v. JOHN 1-10 DOES; COMMONWEALTH MARKETING GROUP INC., a Pennsylvania Corporation

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES SAMUEL GORDON, Jr.,
Plaintiff - Appellant,
v.
JOHN 1-10 DOES; COMMONWEALTH
MARKETING GROUP INC., a
Pennsylvania Corporation,
Defendants - Appellees.
No. 10-35030
D.C. No. 2:08-cv-05074-LRS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
James Samuel Gordon, Jr., appeals pro se from the district court’s summary
judgment in his action alleging statutory and contract claims related to defendants’
transmission of unsolicited commercial email or spam. We have jurisdiction under
FILED
NOV 28 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

10-35030 2
28 U.S.C. § 1291. We review de novo the grant of summary judgment, and may
affirm on any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d
1040, 1047 (9th Cir. 2009). We review for an abuse of discretion the denial of a
motion for reconsideration. MacDonald v. Grace Church Seattle, 457 F.3d 1079,
1081 (9th Cir. 2006). We affirm.
The district court properly granted summary judgment 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).
Summary judgment on the basis of preemption was proper as to Gordon’s
claim under the Washington Commercial Email Marketing Act (the “CEMA”)
because Gordon failed to raise a genuine dispute of material fact as to whether this
claim involved fraud or deception necessary to exempt it from the CAN-SPAM
Act’s preemption clause. See id. at 1062-64 (CEMA claim alleging non-deceptive,
immaterial inaccuracies or incomplete, omitted information in spam emails is
preempted by the CAN-SPAM Act, which only exempts from preemption those
state laws that narrowly regulate fraudulent or deceptive commercial emails).

-- 2 of 3 --

10-35030 3
Summary judgment was proper as to Gordon’s breach of contract claim
because Gordon failed to raise a triable dispute as to whether he could establish the
damages element of his claim. See Wang Labs., Inc. v. Kagan, 990 F.2d 1126,
1128-29 (9th Cir. 1993) (federal courts apply law of state identified in contract);
Nw. Indep. Forest Mfrs. v. Wash. Dep’t of Labor and Indus., 899 P.2d 6, 9, 11
(Wash. Ct. App. 1995) (listing elements of breach of contract claim).
The district court did not abuse its discretion in denying Gordon’s motion
for reconsideration because he failed to establish exceptional circumstances
warranting such relief. See Fed. R. Civ. P. 60(b).
Gordon’s remaining contentions are unpersuasive.
We deny Gordon’s motion to “join appellees” and his request to submit new
evidence for the first time on appeal.
AFFIRMED.

-- 3 of 3 --