FOSTER TAFT V. NABISCO, No. 15-56218 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION JAN 26 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT FOSTER TAFT, U.S. COURT OF APPEALS No. 15-56218 Plaintiff-Appellant, D.C. No. 2:15-cv-02685-DSFMRW v. MEMORANDUM* NABISCO; et al., Defendants-Appellees, and ALTRIA GROUP INC.; et al., Defendants. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Submitted January 18, 2017** Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. Foster Taft appeals pro se from the district court’s judgment dismissing his * 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). diversity action alleging a strict liability claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Ileto v. Glock Inc., 349 F.3d 1191, 1199 (9th Cir. 2003). We affirm. The district court properly dismissed Taft’s claims against defendants Mondelez International, Inc., Kraft Foods Group, Inc., and General Mills, Inc., because Taft failed to allege facts sufficient to “state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Barker v. Lull Eng’g Co., 573 P.2d 443, 446 (Cal. 1978) (product design is defective if “product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner,” or (2) “the benefits of the challenged design do not outweigh the risk of danger inherent in such design”). We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Taft’s request to augment the record, filed on May 10, 2016, is denied. AFFIRMED. 2 15-56218

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