Arlene D. Rowland v. Prudential Financial, Inc.; Wachovia Corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
LBS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARLENE D. ROWLAND,
Plaintiff - Appellant,
v.
PRUDENTIAL FINANCIAL, INC.;
WACHOVIA CORPORATION,
Defendants - Appellees.
No. 07-16358
D.C. No. CV-04-02287-EHC
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Arlene D. Rowland appeals pro se from the district court’s judgment
dismissing her action alleging employment discrimination and retaliation in
FILED
JAN 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violation of state law, Title VII, the Americans with Disabilities Act, the
Sarbanes-Oxley Act (“SOX”), the Family Medical Leave Act (“FMLA”), and other
federal statutes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a dismissal for failure to state a claim. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005). We review for abuse of discretion denial of leave to amend and denial
of a request for default judgment. Chodos v. West Publ’g Co., 292 F.3d 992, 1003
(9th Cir. 2002); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). We affirm.
The district properly dismissed Rowland’s federal discrimination and
retaliation claims as untimely. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176
(9th Cir. 2000) (explaining that where the plaintiff initially institutes proceedings
with a state or local agency, a charge of employment discrimination must be filed
with the Equal Employment Opportunity Commission (“EEOC”) within 300 days
of the discriminatory act); Edwards v. Occidental Chem. Corp., 892 F.2d 1442,
1445 (9th Cir. 1990) (“An action brought under Title VII must be filed within
ninety days of receipt of a right to sue letter from the EEOC or appropriate state
agency.”).
The district court also properly dismissed Rowland’s state discrimination
claims and section 806 SOX claim for the same reason. See Madden-Tyler v.
Maricopa County, 943 P.2d 822, 828 (Ariz. Ct. App. 1997) (explaining that under

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the Arizona Civil Rights Act, Ariz. Rev. Stat. § 41-1481(A), (D), “a charge must
be filed with the [state agency] within 180 days after the alleged unlawful
employment practice occurred” and “[t]he charging party has one year after the
filing of the charge” to file suit); 18 U.S.C. § 1514A(b) (under the SOX, a plaintiff
must file a charge with the Department of Labor within 90 days of the alleged
violation).
Dismissal of Rowland’s claims brought under SOX’s criminal law statutes
was proper because those statutes do not provide a private right of action. See 18
U.S.C. §§ 1512-13 (providing criminal punishment for tampering with or
retaliating against an informant); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980) (affirming dismissal of claims brought under criminal provisions that
“provide[d] no basis for civil remedy”).
Dismissal of Rowland’s FMLA claims was also proper because Prudential
Financial Inc.’s subsidiary was no longer her employer when she attempted to
return to work. See 29 U.S.C. §§ 2615(a)(1)-(2).
The district court did not abuse its discretion in denying without prejudice
Rowland’s motion for leave to file a Second Amended Complaint as moot in light
of her motion for leave to file a Third Amended Complaint. See Armstrong v.

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Davis, 275 F.3d 849, 878 n.40 (9th Cir. 2001) (amended pleading supersedes an
earlier pleading).
The district court also did not abuse its discretion in denying Rowland’s
requests for entry of default and default judgment under Fed. R. Civ. P. 55(a)-(b)
because Prudential Financial, Inc. and Wachovia Corporation filed motions to
dismiss. See Fed. R. Civ. P. 55(a) (permitting the entry of default when the
defendant “fail[s] to plead or otherwise defend”); Direct Mail Specialists, Inc. v.
Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (entry of
default judgment inappropriate if a defendant indicates its intent to defend the
action).
We do not consider Rowland’s listed but undeveloped contentions. See
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues raised in pro se
litigant’s brief but not supported by argument deemed waived).
Rowland’s remaining contentions are unpersuasive.
AFFIRMED.

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