                                                                            FILED
                             NOT FOR PUBLICATION                              OCT 7 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOHN R. QUAIN,                                   No. 10-17508

               Plaintiff - Appellant,            D.C. No. 2:09-cv-02365-DGC

  v.
                                                 MEMORANDUM *
CAPSTAR, dba Clear Channel
Communications, Inc.; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       John R. Quain appeals pro se from the district court’s judgment dismissing

his diversity action alleging breach of contract, misrepresentation, and unjust

enrichment. We have jurisdiction under 28 U.S. C. § 1291. We review de novo


          *
             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).
the district court’s dismissal of a complaint for failure to state a claim, see Cook v.

Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011), and for an abuse of discretion its

denial of leave to amend, see Gordon v. City of Oakland 627 F.3d 1092, 1094 (9th

Cir. 2010). We affirm.

      The district court properly dismissed Quain’s breach of contract claim

because Quain failed sufficiently to allege that he was an intended third-party

beneficiary of the Consent Decree between the Federal Communications

Commission and Clear Channel. See United States v. FMC Corp., 531 F.3d 813,

820-21 (9th Cir. 2008) (when the government is party to a consent decree, there is

a presumption that members of the public are not intended beneficiaries); see also

Norton v. First Fed. Sav., 624 P.2d 854, 856 (Ariz. 1981) (for a person to recover

as a third-party beneficiary of a contract, an intention for that person to benefit

must be indicated in the contract itself).

      The district court properly dismissed Quain’s misrepresentation claim

because Quain failed sufficiently to allege that defendants made a false

representation to him, that defendants intended that he rely on the purported

misrepresentation, or that his reliance was justified. See Haisch v. Allstate Ins.

Co., 5 P.3d 940, 944 (Ariz. Ct. App. 2000) (stating elements of misrepresentation

under Arizona law).


                                             2                                   10-17508
      The district court properly dismissed Quain’s unjust enrichment claim

because Quain failed sufficiently to allege a connection between defendants’

enrichment and Quain’s impoverishment. See Cmty. Guardian Bank v. Hamlin,

898 P.2d 1005, 1008 (Ariz. App. 1995) (stating elements of unjust enrichment

under Arizona law).

      The district court did not abuse its discretion by denying Quain leave to

amend his complaint for the fourth time. See Gordon, 627 F.3d at 1094 (district

court may deny a plaintiff leave to amend if it determines that allegation of other

facts consistent with the challenged pleading could not possibly cure the

deficiency).

       We do not consider Quain’s claims that he did not raise in the operative

second amended complaint. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th

Cir. 2008).

      Quain’s remaining contentions are unpersuasive.

      We deny Quain’s motion for change of venue as moot.

      AFFIRMED.




                                          3                                    10-17508
