L. Haggerty v. Keolis Transit North America ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
L. H. HAGGERTY, No. 18-15470
Plaintiff-Appellant, D.C. No. 2:17-cv-01412-JCM-VCF
v.
MEMORANDUM*
KEOLIS TRANSIT NORTH AMERICA,
INC.; AMALGAMATED TRANSIT
UNION LOCAL 1637, AFL-CIO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
L. H. Haggerty appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims arising from the termination of his
employment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
dismissal under Fed. R. Civ. P. 12(b)(6). Kwan v. SanMedica Int’l, 854 F.3d 1088,
1093 (9th Cir. 2017). We affirm.
The district court properly dismissed Haggerty’s 42 U.S.C.
§ 1983 claims because defendants are not state actors. See West v. Akins, 487 U.S.
42, 48 (1988) (“To state a claim under § 1983, a plaintiff must . . . show that the
alleged deprivation was committed by a person acting under color of state law.”);
Rendell–Baker v. Kohn, 457 U.S. 830, 842 (1982) (“[T]he question is whether the
function performed has been traditionally the exclusive prerogative of the State.”
(citation and internal quotation marks omitted)).
The district court properly dismissed Haggerty’s claim under the Federal
Service Labor-Management Relations Statute (“FSLMRS”) because the statute
does not apply to employees of private entities. See Nat’l Treasury Emps. Union
(NTEU) v. FLRA, 418 F.3d 1068, 1069 (9th Cir. 2005) (the FSLMRS “governs
labor relations for federal employees”); see also 5 U.S.C. § 7103(a)(2) (defining
“employee” under the FSLMRS).
The district court properly dismissed Haggerty’s claim under Nevada law
regarding provision of his employment records because Haggerty failed to allege
facts sufficient to state a claim. See Nev. Rev. Stat. § 613.075 (requiring
employers or “any labor organization referring a person to an employer for
employment” to furnish a copy of employment records to a terminated employee if
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requested by the employee within 60 days after termination).
To the extent Haggerty contends that the district court erred by failing to
conduct a hearing on the motions to dismiss, we reject the contention as without
merit. See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for
submitting and determining motions on briefs, without oral hearings.”).
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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