Kyoung Ko v. Megan Brennan

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2018
• Docket: 18-15700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KYOUNG H. KO, No. 18-15700

Plaintiff-Appellant, D.C. No. 5:17-cv-06427-HRL

v. MEMORANDUM* MEGAN J. BRENNAN, United States Postmaster General,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Howard R. Lloyd, Magistrate Judge, Presiding**

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Kyoung H. Ko appeals pro se from the district court’s judgment dismissing

her employment action alleging federal claims. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil

Procedure 12(b)(6). Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir.

2012). We affirm.

The district court properly dismissed Ko’s action as barred by the settlement

agreement because Ko failed to allege facts sufficient to find that the settlement

agreement was not enforceable. See Nilsson v. City of Mesa, 503 F.3d 947, 951-52

(9th Cir. 2007) (setting forth the factors involved in determining whether an

agreement constitutes a waiver of rights); see also Cachil Dehe Band of Wintun

Indians of Colusa Indian Cmty. v. State of California, 618 F.3d 1066, 1073 (9th

Cir. 2010) (no discernable difference between California and federal contract law).

The district court’s consideration of the settlement agreement in the context

of a motion to dismiss was proper because the document was incorporated by

reference into the first amended complaint. See United States v. Ritchie, 342 F.3d

903, 908 (9th Cir. 2003) (district court may consider document incorporated by

reference in the complaint “if the plaintiff refers extensively to the document”).

AFFIRMED.

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