Syed Nazim Ali v. Synaptics, Inc.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYED NAZIM ALI,

Plaintiff-Appellant,

v.

SYNAPTICS, INC.,

Defendant-Appellee.

No. 19-15589

D.C. No. 5:18-cv-06682-NC

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding
**

Submitted March 3, 2020
***

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Syed Nazim Ali appeals pro se from the district court’s judgment dismissing
his employment action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of

*
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).
FILED

MAR 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-15589
Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
Because Ali failed to oppose defendant’s argument in its motion to dismiss
that Ali admitted he was an independent contractor, Ali has waived his challenge
to the district court’s determination that his discrimination, retaliation, and
wrongful termination claims fail on that basis. See Alaska Airlines, Inc. v. United
Airlines, Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an
appellate court will not reverse a district court on the basis of a theory that was not
raised below.”); see also Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 942 (9th
Cir. 2009) (“Title I [of the Americans with Disabilities Act (“ADA”)] covers all
aspects of the employer-employee relationship . . . it does not cover other
relationships, which are addressed elsewhere in the ADA.”); Adcock v. Chrysler
Corp., 166 F.3d 1290, 1292 (9th Cir. 1999) (“Title VII protects employees, but
does not protect independent contractors.”); Barnhart v. N.Y. Life Ins. Co., 141
F.3d 1310, 1312-13 (9th Cir. 1998) (a plaintiff under the Age Discrimination in
Employment Act “must establish himself as an employee” (citation and internal
quotation marks omitted)); Kelly v. Methodist Hosp. of S. Cal., 997 P.2d 1169,
1174 (Cal. 2000) (the California Fair Employment Housing Act predicates
potential liability on the existence of an employment relationship). In light of this
conclusion, the district court did not abuse its discretion by denying Ali leave to

3 19-15589
amend his complaint. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010)
(setting forth standard of review and factors for determining whether to grant leave
to amend).
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.