Ning Xianhua v. Oath Holdings, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2023
• Docket: 22-15700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NING XIANHUA, No. 22-15700

Plaintiff-Appellant, D.C. No. 4:20-cv-06185-HSG

v. MEMORANDUM* OATH HOLDINGS, INC., DBA Yahoo! Inc., and as successor in interest to Yahoo! Inc.; ALTABA INC., FKA Yahoo! Inc., and as successor in interest to Yahoo! Inc.; TERRY SEMEL; JERRY YANG,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted February 8, 2023 San Francisco, California

Before: McKEOWN, BYBEE, and BUMATAY, Circuit Judges.

Ning Xianhua appeals the district court’s order dismissing his action

asserting claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, Torture

Victim Protection Act (“TVPA”), id. note § 2(a), and California’s unfair

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. competition law (“UCL”), Bus. & Prof. Code § 17200 et seq. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Curry v.

Yelp, Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). We affirm the district court’s

dismissal, but on alternative grounds.

While Ning’s complaint barely meets the pleading standard, see Fed. R. Civ.

P. 8, he nevertheless fails to state a claim under any of the statutes against the

individual or corporate defendants-appellees.

Ning fails to state a claim under the ATS because he did not allege a

permissible extraterritorial application of the Statute. Kiobel v. Royal Dutch

Petroleum Co., 569 U.S. 108, 117 (2013). Even assuming aiding-and-abetting

conduct is relevant to the extraterritoriality analysis, Ning’s complaint fails to

plausibly allege relevant conduct within the United States beyond “general

corporate activity.” Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936–37 (2021).

Ning fails to state a claim under the TVPA because he did not sufficiently

allege state action. His complaint fails to plausibly allege that Terry Semel and

Jerry Yang acted under actual or apparent authority, or color of law, of the

People’s Republic of China. See 28 U.S.C. § 1350 note § 2(a); Mohamad v.

Palestinian Auth., 566 U.S. 449, 453–56, 461 (2012) (holding that only individuals

may be liable under the TVPA).

2 Finally, Ning fails to state a claim under the UCL because he impermissibly

seeks nonrestitutionary disgorgement of profits. Zhang v. Superior Ct., 304 P.3d

163, 167–68 (Cal. 2013) (“Restitution under [the UCL] is confined to restoration

of any interest in ‘money or property, real or personal, which may have been

acquired by means of such unfair competition.’”); Korea Supply Co. v. Lockheed

Martin Corp., 63 P.3d 937, 943 (Cal. 2003) (“[D]isgorgement of money obtained

through an unfair business practice is an available remedy . . . only to the extent

that it constitutes restitution.”).

Because Ning fails to state a claim under the ATS, TVPA, or California’s

UCL, we AFFIRM the district court’s order dismissing the action.