George Jarvis Austin v. Tesla, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE JARVIS AUSTIN,
Plaintiff-Appellant,
v.
TESLA, INC.; et al.,
Defendants-Appellees.
No. 21-15151
D.C. No. 3:20-cv-00800-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
George Jarvis Austin appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law violations stemming from his
employment termination. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe
* 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).
FILED
JUN 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 21-15151
v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly dismissed Austin’s action because Austin failed
to allege facts sufficient to state a wage theft or retaliation claim under the Fair
Labor Standards Act (“FLSA”). See Landers v. Quality Commc’ns, Inc., 771 F.3d
638, 645 (9th Cir. 2015) (“[A] plaintiff asserting a violation of the FLSA overtime
provisions must allege that she worked more than forty hours in a given workweek
without being compensated for the hours worked in excess of forty during that
week”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” (internal quotation marks
omitted)).
The district court did not abuse its discretion in denying Austin leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of
review and stating that leave to amend may be denied where amendment would be
futile); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.
2009) (“[W]here the plaintiff has previously been granted leave to amend and has
subsequently failed to add the requisite particularity to its claims, the district
court’s discretion to deny leave to amend is particularly broad.” (internal quotation
marks omitted)).

-- 2 of 3 --

3 21-15151
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).
All pending motions and requests are denied.
AFFIRMED.

-- 3 of 3 --