Butters v. Travelers Companies, Inc.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VINCENT D. BUTTERS, No. 24-5578 D.C. No. 3:22-cv-00726-SB Plaintiff - Appellant,

v. MEMORANDUM*

TRAVELERS COMPANIES, INC., Travelers Home and Marine Insurance Company,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted June 22, 2026**

Before: CANBY, BENNETT, and BADE, Circuit Judges.

Vincent D. Butters appeals pro se from the district court’s summary

judgment and dismissal orders in his diversity action arising out of an insurance

claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Desire,

* 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). LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021) (summary

judgment); Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889

(9th Cir. 2021) (order granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6)).

We affirm.

The district court properly granted summary judgment on Butters’s

negligence per se and fraudulent misrepresentation claims because Butters failed to

raise a genuine dispute of material fact as to whether defendant made fraudulent

misrepresentations or violated any applicable statute or rule. See Strawn v.

Farmers Ins. Co. of Or., 258 P.3d 1199, 1209 (Or. 2011) (setting forth elements of

a fraudulent misrepresentation claim under Oregon law); Buoy v. Kim, 221 P.3d

771, 779 (Or. Ct. App. 2009) (setting forth elements of a negligence per se claim

under Oregon law).

The district court did not abuse its discretion in considering the declarations

submitted by defendant in support of its motion for summary judgment. See Block

v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir. 2001) (standard of review).

The district court properly dismissed Butters’s claims for breach of contract

and intentional infliction of emotional distress because Butters failed to allege facts

sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (explaining that to avoid dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

2 24-5578 face” (citation and internal quotation marks omitted)); Babick v. Or. Arena Corp.,

40 P.3d 1059, 1063 (Or. 2002) (setting forth elements of a claim for intentional

infliction of emotional distress under Oregon law); Slover v. Or. State Bd. of

Clinical Soc. Workers, 927 P.2d 1098, 1101 (Or. Ct. App. 1996) (setting forth

elements of a breach of contract claim under Oregon law, including the contract’s

“relevant terms, plaintiff’s full performance and lack of breach and defendant’s

breach”).

The district court did not abuse its discretion by dismissing the breach of

contract and intentional infliction of emotional distress claims without leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that dismissal without leave to amend is proper when

amendment would be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc., 540

F.3d 1049, 1072 (9th Cir. 2008) (explaining that “the district court’s discretion to

deny leave to amend is particularly broad where plaintiff has previously amended

the complaint” (citation omitted)).

We reject as unsupported by the record Butters’s contentions that the district

court failed to view all evidence and draw all inferences in the light most favorable

to Butters or made impermissible credibility determinations at summary judgment.

We reject as without merit Butters’s contention that the district court lacked

3 24-5578 subject matter jurisdiction because certain elements of Butters’s insurance claim

were unresolved.

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).

All pending motions and requests are denied.

AFFIRMED.

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