Biddle v. Fred Meyer Stores

44 F. App'x 257

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: No. 01-36084; D.C. No. CV-01-00400-HO
• Status: Published

Opinion

MEMORANDUM

**

Catherine L. Biddle appeals the district court’s dismissal of her amended complaint alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), the Occupational Safety and Health Act (“OSHA”), the Fair Labor Standards Act (“FLSA”), and various state law claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the district court’s dismissal for failure to state a claim and for lack of personal jurisdiction. EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994); Sher v. Johnson, 911 F.2d 1357, 1360 (9th Cir. 1990). We review for abuse of discretion the court’s decision not to exercise supplemental jurisdiction. Binder v. Gillespie, 184 F.3d 1059, 1066 (9th Cir.1999). We affirm.

The district court properly dismissed Smiths Food & Drug Corp. and Kroger Co. for lack of personal jurisdiction because Biddle failed to demonstrate that they have sufficient minimum contacts in Oregon. See Gray & Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir.1990). She points to no evidence on appeal showing that her claims arose out of defendants’ activities in Oregon or that they purposefully availed themselves of the privilege of conducting business in Oregon. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir.1990).

The district court properly dismissed Biddle’s claims against Fred Meyer Stores for failure to state a claim. Biddle did not exhaust administrative remedies with respect to the Title VII claim. See Fanner Bros., 31 F.3d at 899. She did not file the ADA and ADEA claims within 90 days after receiving the right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(l); Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir. 1992). There is no private right of action to enforce the provisions of OSHA. See 29 U.S.C. § 653(b)(4); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir.1994). The district court dismissed the FLSA claim for failure to state a claim. Biddle does not point on appeal to any allegations in her amended complaint which could sustain a FLSA claim.

The district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims after dismissing all federal claims. See 28 U.S.C. § 1367(c)(3).

The district court properly dismissed the amended complaint with prejudice because amendment would be futile. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

We GRANT IN PART AND DENY IN PART appellees’ Motion to Strike Portions of Appellant’s Reply Brief and Attachments. It is not necessary to strike arguments from Biddle’s reply brief that were not raised before the district court because we do not consider them. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). We strike exhibits designated by Attachments B and C of appellee’s motion because they contain evidence not presented to the district court. Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir.1988).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.