NOT FOR PUBLICATION FILED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. 19-15571
Plaintiff-Appellant, D.C. No. 5:18-cv-03981-LHK
v.
MEMORANDUM*
INTEL CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, 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 discrimination claims under Title
VII, as well as Ali’s discrimination and retaliation claims under the California Fair
Employment Housing Act (“FEHA”), 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”); Costa v. Desert Palace, Inc., 299 F.3d 838, 847-48 (9th Cir. 2002)
(the protected characteristic must be a motivating factor for the employment
decision for a Title VII discrimination claim); 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).
The district court properly dismissed Ali’s claim for age discrimination
under the Age Discrimination in Employment Act because Ali failed to exhaust his
administrative remedies. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099-
1100 (9th Cir. 2002) (“Allegations of discrimination not included in the plaintiff’s
administrative charge may not be considered by a federal court unless the new
claims are like or reasonably related to the allegations contained in the EEOC
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charge.” (citation and internal quotation marks omitted)).
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 and
prejudicial to defendant. 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 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)).
The district court did not abuse its discretion by dismissing Ali’s state law
claims rather than remanding his state law claims to state court. See Satey v.
JPMorgan Chase & Co., 521 F.3d 1087, 1090-91 (9th Cir. 2008) (setting forth
standard of review and explaining that the district court has discretion to retain
supplemental jurisdiction over state law claims even if the federal law claims are
dismissed).
The district court did not abuse its discretion by denying Ali’s request for
judicial notice of the contents of newspaper articles. See Von Saher v. Norton
Simon Museum of Art, 592 F.3d 954, 960 (9th Cir. 2010) (“Courts may take
judicial notice of publications introduced to indicate what was in the public realm
at the time, not whether the contents of those articles were in fact true.” (citation
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and internal quotation marks omitted)); Lee v. City of Los Angeles, 250 F.3d 668,
689 (9th Cir. 2001) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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