Syed Ali v. Silicon Valley Bank

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SYED NAZIM ALI, No. 19-15163

Plaintiff-Appellant, D.C. No. 4:18-cv-03999-JSW

v. MEMORANDUM* SILICON VALLEY BANK,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Syed Nazim Ali appeals pro se from the district court’s judgment dismissing

his employment action alleging federal and state law claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of

Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We

* 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). affirm.

The district court properly dismissed Ali’s claims for discrimination and

retaliation under the California Fair Employment Housing Act (“FEHA”) and

intentional infliction of emotional distress because Ali failed to allege facts

sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009) (a plaintiff fails to show he is entitled to relief if the complaint’s factual

allegations “do not permit the court to infer more than the mere possibility of [the

alleged] misconduct”); Harris v. City of Santa Monica, 294 P.3d 49, 66 (Cal. 2013)

(the protected characteristic must be a substantial motivating factor for the

employment decision for a FEHA discrimination claim); Mamou v. Trendwest

Resorts, Inc., 81 Cal. Rptr. 3d 406, 428 (Ct. App. 2008) (elements of a FEHA

retaliation claim); Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 741, 756 (Ct.

App. 1996) (“A simple pleading of personnel management activity is insufficient

to support a claim of intentional infliction of emotional distress, even if improper

motivation is alleged.”).

The district court did not abuse its discretion by denying Ali leave to file a

second amended complaint because leave to amend would have been futile. See

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of

review and factors for determining whether to grant leave to amend); Metzler Inv.

GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (“[T]he

2 19-15163 district court’s discretion to deny leave to amend is particularly broad where

plaintiff has previously amended the complaint.” (citation and internal quotation

marks omitted)).

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).

AFFIRMED.

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