NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELGIN BANKS, an Individual; et al.,

Plaintiffs-Appellants,
v. AMERICAN AIRLINES GROUP, INC., DBA Am erican Airlines, a Delaware Corporation, Defendant-Appellee. No. 21-55538 D.C. No. 2:20-cv-05495-MCS-GJS
MEMORANDUM *

Appeal from the United States District Court for the Central District of California M ark C. Scarsi, District Judge, Presiding Subm itted May 12, 2022 * * Pasadena, California Before: IKUTA and NGUYEN, Circuit Judges, and DANIELS, * * * District Judge. 

# FILED
MAY 16 2022 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).

* * * The Honorable George B. Daniels, United States District Judge for the Southern District of New York, sitting by designation.Elgin Banks, Aubrey Kelly, Natalie Epstein, Brandy Flowers, and Cynthia

Vassor (collectively “Appellants”) appeal the district court’s dism issal of their
com plaint against defendant Am erican Airlines Group, Inc. (“Am erican Airlines”) for failure to state a claim
. See Fed. R. Civ. P. 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we affirm
. Appellants failed to state a claim for race discrim ination under 42 U.S.C. § 1981 because their com plaint does not identify a contractual relationship with Am erican Airlines or “rights under the existing (or proposed) contract that [Appellants] wishe[d] ‘to m ake and enforce.’” Domino’s Pizza, Inc. v. McDonald , 546 U.S. 470, 479–80 (2006). Although Appellants’ com plaint alleges they were discrim inated against with respect to bringing a carry-on bag aboard the plane, changing seats once on the plane, and receiving a voucher for overnight
accom m odations after the flight was cancelled, they do not allege that they had a contractual right to such benefits. Nor do Appellants allege that they sought to
m odify an existing contract with Am erican Airlines for such benefits. 1 Appellants failed to state a claim for negligence under California law because their com

plaint failed to m ake the necessary allegation that Am erican

1 Plaintiffs failed to include such allegations in their com plaint even after the district court expressly identified this deficiency in its order dism issing Plaintiffs’ second am ended com

plaint. 2Airlines owed them a duty of care. See Doe v. United States Youth Soccer Assn.,

Inc. , 8 Cal. App. 5th 1118, 1128 (Cal. Ct. App. 2017). We reject Appellants’ assertion that the Am erican Airlines owed them a duty of care under California Civil Code § 2103, because before the district court, Appellants conceded that California Civil Code § 2103 is preem pted by the Federal Aviation Act (FAA). See Abou-Jaoude v. British Airways , 228 Cal. App. 3d 1137, 1141 (Cal. Ct. App. 1991) (holding that the FAA preem pts Cal. Civ. Code § 2103). 2 We also reject Appellants’ assertion that Am e rican Airlines had a duty to teach its em ployees to conduct them selves with dignity in order to elim inate discrim ination, because Appellants failed to allege that duty in their com plaint and failed to raise it to the district court. See Dream Palace v. Cty. of Maricopa , 384 F.3d 990, 1005 (9th Cir. 2004) (“Ordinarily, [this court] decline[s] to consider argum ents raised for the first tim e on appeal.”). AFFIRMED.

2 Although we are “not bound by state court decisions on the preem ptive effect of federal law,” Matter of Holiday Airlines Corp. , 647 F.2d 977, 980 (9th Cir. 1981), Appellants do not dispute that they are bound by their concession that the FAA preem

pts California Civil Code § 2103. 3