Petra Parker v. Youth Policy Institute , 675 F. App'x 775 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETRA ANN PARKER, No. 15-55396
Plaintiff-Appellant, D.C. No. 2:14-cv-00177-SJO-RZ
v.
MEMORANDUM*
YOUTH POLICY INSTITUTE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Petra Ann Parker’s late motion to proceed in forma pauperis, filed
November 18, 2016, is granted.
Parker appeals pro se from the district court’s judgment dismissing her
action alleging discrimination in violation of the Age Discrimination in
*
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).
Employment Act (“ADEA”), Title VII, and the California Fair Employment and
Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s dismissal under Federal Rules of Civil Procedure
12(b)(6) and 12(c). Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We
may affirm on any basis supported by the record. Johnson v. Riverside Healthcare
Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Parker’s claims against defendants Los
Angeles Unified School District (“LAUSD”) and Youth Policy Institute (“YPI”)
because Parker failed to allege facts sufficient to show that she had an employment
relationship with LAUSD and YPI. See Adcock v. Chrysler Corp., 166 F.3d 1290,
1292 (9th Cir. 1999) (explaining that “Title VII protects employees, but does not
protect independent contractors” and setting forth factors for determining whether
an individual is an employee); Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310, 1312-
13 (9th Cir. 1998) (explaining that claimants under the ADEA must establish
themselves as “employees” and adopting common-law test for determining
employee status under ADEA); see also Kelly v. Methodist Hosp. of S. Cal., 997
P.2d 1169, 1174 (Cal. 2000) (FEHA predicates potential liability on the existence
of an employment relationship).
The district court did not abuse its discretion in considering defendant
YPI’s late motion for judgment on the pleadings because the district court notified
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Parker that it was going to consider the motion and ordered Parker to file a
response. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)
(“The district court is given broad discretion in supervising the pretrial phase of
litigation, and its decisions regarding the preclusive effect of a pretrial scheduling
order . . . will not be disturbed unless they evidence a clear abuse of discretion.”
(citation and internal quotation marks omitted)).
The district court did not abuse its discretion in dismissing for failure to
prosecute Parker’s claims against defendant Academic Advantage because Parker
failed to comply with two orders that directed her to serve Academic Advantage
properly and amend the complaint to reflect Academic Advantage’s name change,
and warned her of the consequences of failing to comply. Al-Torki v. Kaempen, 78
F.3d 1381, 1384 (9th Cir. 1996) (standard of review and discussing factors for
determining whether to dismiss for failure to prosecute).
We reject as unsupported by the record Parker’s contentions that the district
court judge was biased.
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).
YPI’s request for judicial notice, filed on December 9, 2015, is denied.
AFFIRMED.
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