Aparna Vashisht-Rota v. Howell Management Services LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APARNA VASHISHT-ROTA, an No. 20-55302
individual,
D.C. No. 3:19-cv-00512-L-AGS
Plaintiff-Appellant,
v. MEMORANDUM*
HOWELL MANAGEMENT SERVICES,
LLC, a Utah limited liability company; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Aparna Vashisht-Rota appeals pro se the district court’s judgment
dismissing her diversity action alleging employment claims under California law.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
*
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).
under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338,
341 (9th Cir. 2010). We may affirm on any basis supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Vashisht-Rota’s claims in this action as compulsory
counterclaims was proper because the claims arose from the same transaction or
occurrence as the claims being litigated in a pending Utah state court case, No.
170100325, Howell Mgmt. Servs. LLC v. August Educ. Grp., et al. See Utah R.
Civ. P. 13(a); Pochiro v. Prudential Ins. Co. of America, 827 F.2d 1246, 1249 (9th
Cir. 1987) (“The question whether the [Plaintiff’s] claims are compulsory
counterclaims which should have been pleaded in the earlier. . . state court action is
a question of state law.”); Yanaki v. Iomed Inc., 116 P.3d 962, 963-65 (Utah Ct.
App. 2005) (under Utah R. Civ. P. 13(a)(1), employee’s discrimination claims
were compulsory counterclaims that should have been filed in employer’s earlier-
filed action, even if administrative remedies were not yet exhausted; the
employment relationship was the transaction or occurrence that was the subject
matter of the employer’s claims); see also Beck v. Fort James Corp. (In re Crown
Vantage, Inc.), 421 F.3d 963, 973 n.7 (9th Cir. 2005) (“Federal courts will not
permit an action to be maintained where the claims asserted should have been
brought as a compulsory counterclaim in an earlier action.”).
We do not consider arguments or allegations raised for the first time on
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appeal, or documents and facts not presented to the district court. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United States v. Elias, 921 F.2d
870, 874 (9th Cir. 1990).
Appellees’ motion to strike Vashisht-Rota’s second supplemental brief
(Docket Entry No. 49) is granted. The Clerk will strike Docket Entry No. 42. All
other pending motions and requests are denied.
AFFIRMED.
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