                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 09 2011

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



                           FOR THE NINTH CIRCUIT



CYCALONA GOWEN,                                   No. 10-15468

              Plaintiff - Appellant,              D.C. No. 2:08-cv-01581-RCJ-RJJ

  v.
                                                  MEMORANDUM *
TILTWARE LLC; POCKET KINGS
LIMITED; POCKET KINGS
CONSULTING, LIMITED; KOLYMA
CORPORATION; TILTPROOF, INC.;
RAYMOND BITAR; HOWARD
LEDERER,

              Defendants - Appellees.



                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                               Argued April 13, 2011
                              Resubmitted June 9, 2011
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2

Before:        KOZINSKI, Chief Judge, N.R. SMITH, Circuit Judge, and BLOCK,
               District Judge.**

      Because the district court dismissed all of Gowen’s claims, we must accept

the factual allegations in her complaint as true. See Telesaurus VPC, LLC v.

Power, 623 F.3d 998, 1003 (9th Cir. 2010).


      1. The district court correctly dismissed all claims against Pocket Kings Ltd.,

Pocket Kings Consulting Ltd., Kolyma Corp. and Tiltproof, Inc. Gowen didn’t

allege that these companies were alter egos of Tiltware, nor did she plead facts

establishing personal jurisdiction in Nevada. See Schwarzenegger v. Fred Martin

Motor Co., 374 F.3d 797, 801–02, 807 (9th Cir. 2004); Pebble Beach Co. v. Caddy,

453 F.3d 1151, 1156–57 (9th Cir. 2006).


      2. The district court correctly dismissed the claims for breach of contract and

breach of the implied covenant of good faith and fair dealing against Bitar, Lederer

and the individual members of Team Full Tilt because Gowen failed to allege any

facts showing that they’re alter egos of Tiltware. The court correctly dismissed the

breach of fiduciary duty, fraudulent conveyance and declaratory judgment claims

against all defendants because Gowen didn’t allege facts sufficient to state a


          **
             The Honorable Frederic Block, Senior District Judge for the Eastern
District of New York, sitting by designation.
                                                                                 page 3

plausible claim for relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). For

the same reason, the court correctly dismissed the unjust enrichment and fraud

claims against the individual members of Team Full Tilt. See id. Amendment of

the above claims would be futile, so the court didn’t abuse its discretion in denying

leave to do so. See Fed. R. Civ. P. 15(a).


      3. The district court erred in dismissing the breach of contract and

promissory estoppel claims against Tiltware. Gowen alleged that Tiltware

promised orally to provide her with a “1% ownership interest” and make

distribution payments based on that interest once the company became profitable.

She promised to join Team Full Tilt. Taken as true, these allegations are specific

enough to survive a motion to dismiss. See Khoury v. Maly’s of Cal., Inc., 17 Cal.

Rptr. 2d 708, 710 (Ct. App. 1993). The terms of the contract don’t preclude

performance within one year, so an oral contract is valid. See Foley v. Interactive

Data Corp., 765 P.2d 373, 381 (Cal. 1988). Because Gowen alleged an enforceable

contract, the district court shouldn’t have dismissed the claims against Tiltware for

breach of the implied covenant of good faith and fair dealing, specific performance

and an accounting.
                                                                              page 4

      4. Gowen alleged that Tiltware used her celebrity status to promote the Full

Tilt Poker brand, and that she was entitled to compensation for such use. These

allegations state a claim for unjust enrichment. See Day v. Alta Bates Med. Ctr.,

119 Cal. Rptr. 2d 606, 609 (Ct. App. 2002).


      5. The district court erred in dismissing the fraud and negligent

misrepresentation claims against Bitar and Lederer. Bitar promised over the phone

to give Gowen an ownership interest in his company, and Bitar and Lederer

discussed Gowen’s purported ownership interest with her at the Golden Nugget

Casino. Gowen relied on Bitar’s and Lederer’s promises when she joined Team

Full Tilt, but Bitar and Lederer knew that no ownership interest had been or would

be given to her. These allegations meet Rule 9(b)’s heightened pleading standard.

See Sanford v. Memberworks, Inc., 625 F.3d 550, 558 (9th Cir. 2010); cf. Fanucchi

& Limi Farms v. United Agri Prods., 414 F.3d 1075, 1088 (9th Cir. 2005).


      6. Gowen discovered her injury in 2007, when she saw other Team Full Tilt

members begin to receive the promised distribution payments. She timely filed suit

within two years of discovering her injury. See Fox v. Ethicon Endo-Surgery, Inc.,

110 P.3d 914, 921 (Cal. 2005); see also Cal. Code Civ. P. §§ 338(d), 339.


      AFFIRMED in part and REVERSED in part. No costs.
