                                                                           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                             NOT FOR PUBLICATION                            NOV 28 2011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., a                      No. 10-35283
married individual,
                                                 D.C. No. 2:06-cv-01537-JCC
               Plaintiff - Appellant,

  v.                                             MEMORANDUM *

INVIVA INC, a Kentucky and Delaware
corporation doing business as American
Life Direct and American Life Insurance
Co of New York; JOHN DOES, I-X,

               Defendants - Appellees.



                     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 judgment

on the pleadings in his action alleging that defendants’ transmission of unsolicited

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

under 28 U.S.C. § 1291. We review de novo, Dunlap v. Credit Prot. Ass’n LP, 419

F.3d 1011, 1012 n.1 (9th Cir. 2005) (per curiam), and may affirm on grounds

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

Cir. 2009). We affirm.

      The district court properly granted judgment on the pleadings 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).

      Judgment on the pleadings on the basis of preemption was proper as to

Gordon’s claim under the Washington Commercial Email Marketing Act (the

“CEMA”) because he did not allege the fraud or deception necessary to exempt the

claim 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                                    10-35283
      Judgment on the pleadings was proper as to Gordon’s claim under the

Washington Consumer Protection Act (the “CPA”) because Gordon did not

establish several elements of such a claim as a matter of law. See Hangman Ridge

Training Stables, Inc. v. Safeco Title Ins., 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 deny as moot Gordon’s renewed motion to correct the district court

record by adding additional pleadings. However, in light of Gordon’s pro se

status, we have considered all submitted documents.

      AFFIRMED.




                                          3                                   10-35283
