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 2019-04

Bahar Mikhak v. University of Phoenix, Inc. ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        APR 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAHAR MIKHAK,                                   No.    17-17535
Plaintiff-Appellant,            D.C. No. 3:16-cv-00901-CRB
v.
MEMORANDUM*
UNIVERSITY OF PHOENIX, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted April 17, 2019**
Before:      McKEOWN, BYBEE, and OWENS, Circuit Judges.
Bahar Mikhak appeals pro se from the district court’s judgment dismissing
for failure to prosecute her employment action alleging federal and state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion. Omstead v. Dell, Inc.,
    594 F.3d 1081
    , 1084 (9th Cir. 2010). We affirm.
*
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).
The district court did not abuse its discretion by dismissing Mikhak’s action
for failure to prosecute because Mikhak did not comply with the district court’s
orders directing Mikhak to initiate arbitration despite being warned that
noncompliance could result in dismissal. See
    id. (discussing the 
    five factors for
determining whether to dismiss under Fed. R. Civ. P. 41(b) for failure to prosecute
or comply with a court order); Ferdik v. Bonzelet,
    963 F.2d 1258
    , 1260 (9th Cir.
1992) (although dismissal is a harsh penalty, a district court’s dismissal should not
be disturbed absent “a definite and firm conviction” that it “committed a clear error
of judgment” (citation and internal quotation marks omitted)); see also Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership,
    507 U.S. 380
    , 396 (1993)
(holding that clients must be held accountable for the acts and omissions of their
attorneys).
Because Mikhak’s action was dismissed for failure to prosecute, we do not
consider her challenges to the district court’s interlocutory orders. See Al-Torki v.
Kaempen,
    78 F.3d 1381
    , 1386 (9th Cir. 1996) (“[I]nterlocutory orders, generally
appealable after final judgment, are not appealable after a dismissal for failure to
prosecute[.]”).
We do not consider documents not presented to the district court. See
United States v. Elias,
    921 F.2d 870
    , 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
2                                   17-17535
We reject as unsupported by the record Mikhak’s contentions that defendant
and its counsel committed perjury, that defendant’s counsel and the district court
engaged in misconduct, or that Mikhak was denied an opportunity to file reply
briefs in response to various filings by defendant.
Mikhak’s motion to present new issues and analyses (Docket Entry No. 27)
is denied.
Defendant’s motion to strike (Docket Entry No. 35) is denied as
unnecessary.
AFFIRMED.
3                                  17-17535