                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 25 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



 PARVIZ MONTAZER,                                No. 08-15070

              Plaintiff - Appellant,             D.C. No. 07-CV-00563-JCM

   v.
                                                 MEMORANDUM *
 SM STOLLER, INC.; et al.,

              Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Nevada
                      James C. Mahan, District Judge, Presiding

                            Submitted January 11, 2010 **


        Before:     BEEZER, TROTT, and BYBEE, Circuit Judges.

        Parviz Montazer appeals pro se from the district court’s judgment dismissing

with prejudice his action alleging federal employment discrimination and state law



         *
             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).

GT/Research
tort claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo, BNSF Ry. Co. v. O’Dea, 572 F.3d 785, 787 (9th Cir. 2009), and we affirm in

part, vacate in part, and remand.

       The district court did not err in dismissing the federal employment

discrimination claims because Montazer failed to allege facts showing that any

remaining defendant was his employer. See Clackamas Gastroenterology Assoc.,

P.C. v. Wells, 538 U.S. 440, 445 (2003) (explaining that for purposes of federal

statutory law “conventional master-servant relationship as understood by common-

law agency doctrine” is the relevant test in determining whether plaintiff is an

“employee” of defendant); id. at 450 (explaining that an “employer” is able to “hire

and fire employees”).

       Dismissal of these claims should have been on the merits for failure to state

a claim, rather than for lack of subject matter jurisdiction, as the pleadings do not

indicate that the federal claims were necessarily “implausible.” See Cook v. Peter

Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) (“Under the substantiality

doctrine, the district court lacks subject matter jurisdiction when the question

presented is too insubstantial to consider. The claim must be so insubstantial,

implausible, foreclosed by prior decisions of this Court or otherwise completely




GT/Research                                2                                       08-15070
devoid of merit as not to involve a federal controversy within the jurisdiction of the

District Court[.]”) (citations and internal quotation marks omitted).

       A dismissal of the federal claims on the merits would have allowed the

district court to exercise its discretion to adjudicate the state law claims. But

having dismissed the federal claims for lack of subject matter jurisdiction, the

district court should not have adjudicated the state law claims. See Herman Family

Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (“If the district

court dismisses all federal claims on the merits, it has discretion under § 1367(c) to

adjudicate the remaining claims; if the court dismisses for lack of subject matter

jurisdiction, it has no discretion and must dismiss all claims.”).

       After dismissal of federal claims on the merits, the preferable course of

action is dismissal of the remaining claims without prejudice. Les Shockley

Racing, Inc. v. Nat’l Hot Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989) (“When . . .

the court dismisses the federal claim[s] leaving only state claims for resolution, the

court should decline jurisdiction over the state claims and dismiss them without

prejudice.”).

       We do not consider issues that Montazer did not develop in his opening

brief. See Pierce v. Multnomah County, 76 F.3d 1032, 1037 n. 3 (9th Cir. 1996).

       Montazer’s remaining contentions are unpersuasive.


GT/Research                                3                                        08-15070
       We grant the pending motions concerning Montazer’s reply briefs, filed on

May 16, 2008 and May 30, 2008.

       The parties shall bear their own costs on appeal.

       In summary, we affirm dismissal with prejudice of the federal claims for

failure to state a claim, vacate dismissal of the state law claims with prejudice, and

remand for further proceedings on the state law claims.

       AFFIRMED in part, VACATED in part, and REMANDED.




GT/Research                                4                                    08-15070
