                                                                             FILED
                             NOT FOR PUBLICATION                              JAN 11 2012

                                                                         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. 11-35373

               Plaintiff - Appellant,             D.C. No. 2:10-cv-05140-LRS

  v.
                                                  MEMORANDUM *
BAC HOME LOANS SERVICING LP,
FKA Countrywide Home Loan Servicing
LP; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       James Samuel Gordon, Jr., appeals pro se from the district court’s judgment

dismissing his action alleging violations of federal and state statutes arising from

defendants’ transmission of unsolicited commercial email or spam. We have

          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a

dismissal for failure to comply with a court order, Ferdik v. Bonzelet, 963 F.2d

1258, 1260 (9th Cir. 1992), and de novo a dismissal for failure to state claim,

Miller v. Yokohama Tire Corp., 358 F.3d 616, 619 (9th Cir. 2004). We affirm.

      The district court did not abuse its discretion in dismissing Gordon’s action

after he failed to comply with the court’s order to amend to cure the defects in one

of his claims, and instead filed entirely new claims, many of which had been

dismissed in prior actions. See Fed. R. Civ. P. 41(b) (allowing dismissal of action

for failure to comply with court order); Ferdik, 963 F.2d at 1260-63 (listing factors

to guide decision to dismiss under Rule 41(b) and noting that dismissal can be

appropriate if strongly supported by a majority of factors).

      The district court also properly dismissed Gordon’s claims on the merits.

      First, Gordon’s claim under the Washington Commercial Electronic Mail

Act was barred by the two-year catchall limitations period applicable to

Washington state law claims that lack an enumerated limitations period. See

Wash. Rev. Code § 4.16.130.

      Second, Gordon’s claims under the Computer Fraud and Abuse Act failed

because alleged violations of Section 1030 were barred by that provision’s two-

year limitations period, and alleged violations of Section 1037 Act are not


                                          2                                       11-35373
cognizable as a civil cause of action. See 18 U.S.C. § 1030(g) and 1037; see also

Touche Ross & Co. v. Redington, 442 U.S. 560, 575-77 (1979) (test to determine if

there is an implied civil cause of action for conduct prohibited by criminal statute).

      Third, Gordon lacked standing under the Controlling the Assault of Non-

Solicited Pornography and Marketing Act of 2003. See Gordon v. Virtumundo,

Inc., 575 F.3d 1040, 1051-57 (9th Cir. 2009) (explaining in analogous context that

Gordon is not an adversely affected, bona fide Internet access provider who has

standing to sue under the Act).

      Finally, Gordon failed to allege the essential damage element of a claim

under the Washington Consumer Protection Act. See Hangman Ridge Training

Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535-39 (Wash. 1986) (listing

claim elements); see also Virtumundo, 575 F.3d at 1065-66 (Gordon failed to

allege elements of nearly identical claim).

      Gordon’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           3                                    11-35373
