Kyoung Ko v. Megan Brennan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYOUNG H. KO, No. 18-15700
Plaintiff-Appellant, D.C. No. 5:17-cv-06427-HRL
v.
MEMORANDUM*
MEGAN J. BRENNAN, United States
Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding**
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Kyoung H. Ko appeals pro se from the district court’s judgment dismissing
her employment action alleging federal claims. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6). Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir.
2012). We affirm.
The district court properly dismissed Ko’s action as barred by the settlement
agreement because Ko failed to allege facts sufficient to find that the settlement
agreement was not enforceable. See Nilsson v. City of Mesa, 503 F.3d 947, 951-52
(9th Cir. 2007) (setting forth the factors involved in determining whether an
agreement constitutes a waiver of rights); see also Cachil Dehe Band of Wintun
Indians of Colusa Indian Cmty. v. State of California, 618 F.3d 1066, 1073 (9th
Cir. 2010) (no discernable difference between California and federal contract law).
The district court’s consideration of the settlement agreement in the context
of a motion to dismiss was proper because the document was incorporated by
reference into the first amended complaint. See United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003) (district court may consider document incorporated by
reference in the complaint “if the plaintiff refers extensively to the document”).
AFFIRMED.
2 18-15700