Tugrul Gulec v. Boeing Company

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

TUGRUL GULEC, No. 15-56700

Plaintiff-Appellant, D.C. No. 2:13-cv-07144-DSF-AJW

v.
MEMORANDUM*
THE BOEING COMPANY; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding

Submitted September 26, 2017**

Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

Tugrul Gulec appeals pro se the district court’s judgment dismissing his

action alleging national origin discrimination under Title VII and other causes of

action, and related orders. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167 (9th Cir.

*
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).
2013) (dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim); Lyon v.

Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (order granting motion

for judgment on the pleadings under Fed. R. Civ. P. 12(c)). We affirm.

The district court properly dismissed Gulec’s Title VII employment

discrimination claim because Gulec failed to allege facts sufficient to show that he

was qualified for the positions for which he applied, and that after he was rejected

the positions remained available and defendants continued to review applicants

with comparable qualifications. See Lyons v. England, 307 F.3d 1092, 1112 (9th

Cir. 2002) (setting forth requirements for prima facie case of discrimination under

Title VII).

The district court properly dismissed Gulec’s invasion of privacy claim

under California law because Gulec failed to allege facts sufficient to show that he

had a reasonable expectation of privacy in light of his consent to the phone

interviews. See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 26, 35-37

(1994) (setting forth requirements for invasion of privacy claim and stating that

plaintiff “must not have manifested by his or her conduct a voluntary consent to

the invasive actions of the defendant”).

The district court properly dismissed Gulec’s torture, antitrust, and

international law claims because Gulec failed to allege facts sufficient to state

plausible claims that defendants’ alleged conduct amounted to torture, antitrust

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violations, or violations of international law. See Hebbe v. Pliler, 627 F.3d 338,

341-42 (9th Cir. 2010).

The district court properly dismissed Gulec’s claim to “cancel” the statute of

limitations because there is no such independent cause of action under state or

federal law.

The district court did not abuse its discretion by denying Gulec leave to

amend because amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202,

1212 (9th Cir. 2012) (district court may dismiss a pro se complaint without leave to

amend if “it is absolutely clear that the deficiencies of the complaint could not be

cured by amendment” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by granting severance due to

misjoinder because Gulec’s claims against defendants do not arise “out of the same

transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P.

20; see also Fed. R. Civ. P. 21 (court may drop parties and sever claims in case of

misjoinder); Visendi v. Bank of Am., N.A., 733 F.3d 863, 870 (9th Cir. 2013)

(holding that plaintiffs’ interactions with the defendants were not uniform and the

factual disparities alleged were too great to support permissive joinder).

The district court did not abuse its discretion by denying Gulec’s motion to

vacate the settlement under Federal Rule of Civil Procedure 60(b)(3) because

Gulec failed to establish that Boeing misled or coerced him into signing the

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settlement agreement. See Fed. R. Civ. P. 60(b)(3) (court may relieve party from

judgment or order due to fraud, misrepresentation, or misconduct by an opposing

party). The district court did not abuse its discretion by declining to consider

Gulec’s contentions, raised for the first time in his reply brief, that the settlement

agreement is unconscionable and violates California Business and Professions

Code § 16600. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The

district court need not consider arguments raised for the first time in a reply

brief.”).

AFFIRMED.

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