                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KENNETH HEUSEY,                                 No. 15-55975

                Plaintiff-Appellant,            D.C. No. 2:14-cv-06810-AB-E

 v.
                                                MEMORANDUM*
ROLAND EMMERICH; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andre Birotte, Jr., District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Kenneth Heusey appeals pro se from the district court’s judgment dismissing

his action alleging copyright infringement and fraud. We have jurisdiction under

28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.



      *
             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).
2010), and we affirm.

      The district court properly dismissed Heusey’s copyright infringement

claims because, as a matter of law, Heusey’s copyrighted screenplay Not Without

Justice and defendants’ film Anonymous are not substantially similar under the

extrinsic test, and any similarities in the general concepts are unprotected.

See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624-25 (9th Cir. 2010)

(setting forth extrinsic test to assess substantial similarity between specific

expressive elements of copyrighted works at issue, such as plot, sequence of

events, themes, dialogue, mood, setting, pace, and characters); Funky Films, Inc. v.

Time Warner Entm’t Co., 462 F.3d 1072, 1076-78 (9th Cir. 2006) (substantial

similarity may be decided as a matter of law by applying the extrinsic

test); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (“Scenes-

a-faire, or situations and incidents that flow necessarily or naturally from a basic

plot premise, cannot sustain a finding of infringement.”).

      We reject as meritless Heusey’s contention that the promotional trailers for

defendants’ film, as freestanding works separate from the film itself, are

independently substantially similar to Heusey’s screenplay.

      The district court properly dismissed Heusey’s fraud claim because Heusey

failed to allege facts sufficient to state a plausible claim under California law. See

Belasco v. Wells, 183 Cal. Rptr. 3d 840, 852 (Ct. App. 2015) (elements of a fraud


                                           2                                      15-55975
claim under California law).

      The district court did not abuse its discretion by dismissing Heusey’s

complaint without leave to amend because amendment would be futile. See

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth

standard of review and explaining that “[a] district court acts within its discretion

to deny leave to amend when amendment would be futile”).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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