Eugene A. Debons, on behalf of himself and all others similarly situated v. Globus Medical, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE A. DEBONS, on behalf of
himself and all others similarly situated,
Plaintiff-Appellant,
v.
GLOBUS MEDICAL, INC.,
Defendant-Appellee.
No. 14-56455
D.C. No.
2:13-cv-08518-SVW-FFM
MEMORANDUM *
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.
FILED
AUG 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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

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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.

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