Opinion
21-15151
06-28-2022
GEORGE JARVIS AUSTIN, Plaintiff-Appellant, v. TESLA, INC.; et al., Defendants-Appelle
NOT FOR PUBLICATION
Submitted June 15, 2022
Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding D.C. No. 3:20-cv-00800-EMC
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
MEMORANDUM [*]
George Jarvis Austin appeals pro se from the district court's judgment dismissing his action alleging federal and state law violations stemming from his employment termination. 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 affirm.
The district court properly dismissed Austin's action because Austin failed to allege facts sufficient to state a wage theft or retaliation claim under the Fair Labor Standards Act ("FLSA"). See Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 645 (9th Cir. 2015) ("[A] plaintiff asserting a violation of the FLSA overtime provisions must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week"); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." (internal quotation marks omitted)).
The district court did not abuse its discretion in denying Austin leave to amend because amendment would have been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and stating that leave to amend may be denied where amendment would be futile); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) ("[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, the district court's discretion to deny leave to amend is particularly broad." (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).
All pending motions and requests are denied.
AFFIRMED.
[*] 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).