NOT FOR PUBLICATION FILED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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