Montazer

MEMORANDUM

Parviz Montazer appeals pro se from the district court’s judgment dismissing with prejudice his action alleging federal employment discrimination and state law 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 , 123 S.Ct. 1673 , 155 L.Ed.2d 615 (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 , 123 S.Ct. 1673 (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 nec…