George Jarvis Austin v. Kemper Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE JARVIS AUSTIN,
Plaintiff-Appellant,
v.
KEMPER CORPORATION,
Defendant-Appellee.
No. 22-15113
D.C. No. 3:21-cv-03208-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
George Jarvis Austin appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims for discrimination, as
well as his state law claims for breach of contract, breach of insurance contract,
and breach of the duty of good faith and fair dealing. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). Brunette v.
Humane Soc. of Ventura County, 294 F.3d 1205, 1209 (9th Cir. 2002). We affirm.
The district court properly dismissed Austin’s federal and state law claims
for discrimination on the basis of race or disability because Austin failed to allege
facts sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (to avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face” (citation and
internal quotation marks omitted)); Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir.
1989) (in a 42 U.S.C. § 1981 action, “plaintiffs must show intentional
discrimination on account of race”); Munson v. Del Taco, Inc., 208 P.3d 623, 628-
30 (Cal. 2009) (to state a claim under the Unruh Act, a plaintiff must plead
intentional discrimination unless they also establish a violation of the Americans
with Disabilities Act).
The district court properly dismissed Austin’s breach of contract claims
because Austin failed to allege facts sufficient to demonstrate the existence of a
contract between himself and Kemper Corporation that would cover the injuries he
asserts. See CDF Firefighters v. Maldonado, 70 Cal. Rptr. 3d 667, 679 (Ct. App.
2008) (setting forth elements of a breach of contract claim under California law).

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The district court properly dismissed Austin’s claim alleging a breach of the
duty of good faith and fair dealing because Austin cannot bring this claim as a third
party to the contract. See Coleman v. Republic Indem. Ins. Co., 33 Cal. Rptr. 3d
744, 745 (Ct. App. 2005) (“[A] third party claimant—an individual who is injured
by the alleged negligence of an insured party—does not have a private right of
action against the insurer for unfair settlement practices”); id at 752 (holding that
an “insurer owes no duty of good faith and fair dealing to a third party claimant”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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