NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 21 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LECIA L. SHORTER, No. 18-56255

Plaintiff-Appellant, D.C. No. 2:16-cv-07181-DMG-FFM v.

SOUTHERN CALIFORNIA BUICK MEMORANDUM*

PONTIAC GMC DEALERS, INC.;

MARTIN CADILLAC COMPANY, INC.,

DBA Martin Automotive Group;

FLASHPOINT COMMUNICATIONS LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted November 19, 2019**

Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.

Lecia Shorter appeals from the district court’s grant of summary judgment

and dismissal of her claims that the defendants violated her right “to make and

* 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).

1 enforce contracts,” 42 U.S.C. § 1981, when she was not permitted to participate in

a test-drive promotion because she did not have proof of insurance. We have

jurisdiction under 28 U.S.C. § 1291. The facts of this case are known to the

parties, and we do not repeat them here.

I

Shorter claims that the district court errantly granted summary judgment to

Martin Automotive Group because this court’s decision in Nat’l Ass’n of African

Am.-Owned Media v. Charter Communications, Inc. (NAAAOM), 915 F.3d 617

(9th Cir. 2019), lowers the threshold for a prima facie § 1981 case.

Shorter’s appeal is premised on a misunderstanding of the district court’s

ruling. The district court concluded that Shorter, who is African-American, likely

satisfied all the elements of a prima facie case. Where Shorter’s case failed was at

a later stage in the § 1981 burden-shifting framework in which the burden shifts

back to Shorter. Specifically, once Martin produced evidence that it had a

legitimate and nondiscriminatory basis for prohibiting the test drive, the burden

shifted back to Shorter to show that Martin’s explanation was pretextual. The

district court correctly concluded that Shorter’s only evidence of pretext—her

subjective impressions of the attitudes of certain Martin’s employees (two of

whom are themselves African-American)—is not sufficient to meet such a burden.

See Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1148 (9th Cir. 2006).

2 NAAAOM does not alter this final stage in our § 1981 burden-shifting framework.

See NAAAOM, 915 F.3d at 622–28.

II

Shorter also claims that the district court erred by dismissing her § 1981

claims against Southern California Buick Pontiac GMC Dealers, Inc. (“Dealers

Group”) and against Flash Point Communications, LLC. Again she stakes much of

her argument on a misunderstanding of NAAAOM.

Dismissal of a § 1981 claim is proper when a plaintiff either fails to state a

prima facie case or “when defendant’s [nondiscriminatory] explanation is so

convincing that plaintiff’s explanation is implausible.” NAAAOM, 915 F.3d at 627.

The district court correctly dismissed the claims against the Dealers Group and

against Flash Point because Shorter failed to state a prima facie case. Specifically,

Shorter fails to plead specific facts from which discriminatory intent can be

plausibly inferred. See id. at 626. Shorter’s allegations against the Dealers Group,

which sponsored the promotion, are conclusory and are belied by its efforts to help

Shorter participate in the promotion. The allegations against Flash Point, which

administered the test-drive web promotion, are even more implausible—Flash

Point had no way of knowing Shorter’s race.

Shorter further claims the motions to dismiss were untimely because the

defendants failed to comply with Local Rule 7-3’s meet and confer requirements.

3 The district court did not abuse its discretion by not denying the motions to dismiss

on the basis of an alleged violation of Local Rule 7-3. Indeed, it gave multiple

compelling reasons for considering the motions.

Shorter finally tries to salvage her claim against the Dealers Group by

alleging that there is no “separation of identity” between Martin and the Dealers

Group or that they and Flash Point are in a “hub and spoke conspiracy” in violation

of 42 U.S.C. § 1985. Assuming such new claims were not forfeited, they are

nevertheless baseless. Martin is but one member of the Dealers Group, which is a

mutual benefit corporation for dealers around the region. Martin and the Dealers

Group are therefore separate entities. See Mesler v. Bragg Mgmt. Co., 702 P.2d

601, 606 (Cal. 1985). Shorter’s § 1985 theory fails for the same reason as her §

1981 claims: each requires that the plaintiff plausibly allege the conspirators’

“discriminatory animus,” which Shorter has not done. Sprewell v. Golden State

Warriors, 266 F.3d 979, 989 (9th Cir. 2001).

Finally, the district court did not abuse its discretion by denying leave to

amend the operative Fourth Amended Complaint based on futility.1 Such a

1 Flash Point moves for judicial notice of four records from Shorter’s state court proceedings against these defendants because such records directly relate to the question of whether further amendment would be futile. The motion for judicial notice is GRANTED.

4 rationale is permissible, see Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1041 (9th Cir. 2011), and its application in this case is more than reasonable.

AFFIRMED.

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