                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           AUG 16 2016

                   UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


EUGENE A. DEBONS, on behalf of                   No.   14-56455
himself and all others similarly situated,
                                                 D.C. No.
              Plaintiff-Appellant,               2:13-cv-08518-SVW-FFM

 v.
                                                 MEMORANDUM *
GLOBUS MEDICAL, INC.,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted August 5, 2016
                               Pasadena, California

Before: KOZINSKI and WARDLAW, Circuit Judges, and BENCIVENGO,**
District Judge.

____________________

      *    This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      ** The Honorable Cathy Ann Bencivengo, United States District Judge for
the Southern District of California, sitting by designation.
                                                                                 Page 2

      Eugene DeBons appeals from the district court’s judgment dismissing his

putative class action alleging various claims under California statutory, tort, and

contract law. We have jurisdiction under 28 U.S.C. § 1291. We review the

dismissal de novo, Lilly v. ConAgra Foods, Inc., 743 F.3d 662, 664 (9th Cir. 2014),

and we affirm.

      The Federal Food, Drug, and Cosmetic Act (“FDCA”) “leaves no doubt that

it is the Federal Government rather than private litigants who [is] authorized to file

suit for noncompliance with the medical device provisions.” Buckman Co. v.

Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4 (2001) (citing 21 U.S.C. § 337(a)).

Based on this language, we have held that there is a “narrow gap through which a

state-law claim must fit to escape preemption by the FDCA: The plaintiff must be

suing for conduct that violates the FDCA (or else his claim is expressly preempted

by [21 U.S.C. § 360k(a)]), but the plaintiff must not be suing because the conduct

violates the FDCA (such a claim would be impliedly preempted under Buckman).”

Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1120 (9th Cir. 2013) (citation omitted).

With the exception of DeBons’s breach of contract claim, the district court

correctly determined that DeBons’s claims do not fit through this gap and are

therefore preempted.

      The district court erred in dismissing DeBons’s breach of contract claim on
                                                                               Page 3

preemption grounds to the extent that claim is premised on an express contractual

representation by Globus that NuBone was “FDA approved” or had been

determined to be “safe and effective.” The MDA’s preemption clause does not

shelter a manufacturer “from suits alleging no violation of state-imposed

obligations, but seeking recovery solely for the [manufacturer’s] alleged breach of

its own, self-imposed undertakings.” Am. Airlines, Inc. v. Wolens, 513 U.S. 219,

228 (1995); see also Murphy v. DirecTV, Inc., 724 F.3d 1218, 1227 (9th Cir. 2013)

(“[C]ontracting parties can enforce the substantive terms of a private agreement

even if they exceed the requirements of federal law”). To the extent DeBons

alleges only a breach of Globus’s own, self-imposed undertaking, and not a state

requirement, his claim is not preempted.

      Nevertheless, “we can affirm on any ground supported by the record.”

Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008). The district court

dismissed DeBons’s contract claims in his first amended complaint for failure to

allege any facts supporting the existence of a contract between DeBons and

Globus, or a contract between Globus and the hospital to which DeBons was a

third-party beneficiary. The operative third amended complaint failed to remedy

these deficiencies. Further, at oral argument, counsel for DeBons acknowledged

that DeBons has no knowledge of the existence of such a contract, but rather hoped
                                                                                    Page 4

to uncover such a contract during discovery. Because DeBons had four

opportunities to allege a viable contract claim and could not do so, allowing

DeBons further opportunity to amend his complaint would be futile. Accordingly,

the district court’s dismissal of the breach of contract claim is affirmed on the

ground that the third amended complaint does not allege facts sufficient to state a

claim. Fed. R. Civ. P. 12(b)(6).

       Finally, the district court properly dismissed DeBons’s negligence per se

claim on the grounds that negligence per se is not a recognized independent claim

under California law. See Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256,

1285 (Cal. Ct. App. 2006) (“[T]o apply negligence per se is not to state an

independent cause of action. The doctrine does not provide a private right of

action for violation of a statute.”).

       AFFIRMED.
