                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 28 2011

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




                             FOR THE NINTH CIRCUIT



JAMES SAMUEL GORDON, Jr.,                        No. 10-35180

               Plaintiff - Appellant,            D.C. No. 2:06-cv-01350-JCC

  v.
                                                 MEMORANDUM *
BMG COLUMBIA HOUSE INC, a New
York corporation,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, 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 that defendant’s transmission of unsolicited

commercial email or spam violated federal and state statutes. We have jurisdiction


          *
             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).
under 28 U.S.C. § 1291. We review de novo, and may affirm on any basis

supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th

Cir. 2009). 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 id. 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).

      Summary judgment was proper as to Gordon’s claim under the Washington

Consumer Protection Act (the “CPA”) because Gordon failed to raise a genuine


                                          2                                     10-35180
dispute as to whether he could establish the elements of such a claim. See

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531,

535-37 (Wash. 1986) (listing CPA claim elements); see also Virtumundo, 575 F.3d

at 1065-66 (Gordon failed to establish elements of nearly identical CPA claim).

      Gordon’s remaining contentions are unpersuasive.

      We do not consider arguments and evidence Gordon attempts to raise for the

first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      We deny defendant’s request to declare Gordon’s appeal frivolous without

prejudice to a separately filed motion on the issue. See Fed. R. App. P. 38 and 39;

see also 9th Cir. R. 39-1.6.

      AFFIRMED.




                                         3                                     10-35180
