NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YULIUS MUSTAFA, 

Plaintiff-Appellant, 

 v. 

YUMA REGIONAL MEDICAL CENTER, 

an Arizona nonprofit corporation; et al., 

Defendants-Appellees.

No. 23-15169 

D.C. No. 2:21-cv-00161-ROS 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted May 15, 2024

Phoenix, Arizona

Before: GRABER, DESAI, and DE ALBA, Circuit Judges.

Plaintiff, Dr. Yulius Mustafa, timely appeals the district court’s entry of 

summary judgment in favor of Defendants Yuma Regional Medical Center (“the 

Hospital”) and Dr. Bharat Magu in this action alleging violation of the Uniformed 

Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. 

§ 4311, and the Arizona Employment Protection Act (“AEPA”), Ariz. Rev. Stat. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

§ 23-1501(A)(3)(c)(vii), and raising tort claims under Arizona law. Reviewing de 

novo, Donell v. Kowell, 533 F.3d 762, 769 (9th Cir. 2008), we affirm.

1. The district court correctly granted summary judgment to Defendants as 

to the USERRA and AEPA claims.1 Plaintiff is an independent contractor by 

virtue of (1) the terms of the Independent Contractor Agreement (“the 

Agreement”), (2) the intention of the Agreement, and (3) the economic realities of 

the Agreement. See H.R. Rep. No. 103-65(I), at 2454 (1993) (Congress intended 

that USERRA “would define ‘employee’ in the same expansive manner as under 

the Fair Labor Standards Act . . . . and the issue of independent contractor versus 

employee should be treated in the same manner as under the Fair Labor Standards 

Act.”); see also Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 755 (9th 

Cir. 1979) (noting that even if a contract identifies a worker as an independent 

contractor, “contractual language . . . is not [always] conclusive . . . . Economic 

realities, not contractual labels, determine employment status for the remedial 

purposes of the FLSA [and, thus, under USERRA]”). 

Among other things: the Agreement stated that Plaintiff was an independent 

contractor with “No Employee Status.” Before deciding whether to become an 

employee or an independent contractor, Plaintiff discussed the options with an 

1 Because protections under AEPA track those under USERRA, we apply the same 

analysis.
3 

accountant, who advised that the independent contractor arrangement was “more 

beneficial for tax purposes” than the employee arrangement. Plaintiff then 

established a professional limited liability company for the sole purpose of entering 

into the Agreement with the Hospital. Plaintiff did not obtain employee benefits, 

such as health insurance. The Hospital paid his limited liability company; the 

company paid him; and he deducted business expenses through the company. 

Plaintiff also had the right to establish the days and hours during which he would 

provide services.

Because the protections provided under USERRA and the AEPA do not 

extend to independent contractors, summary judgment for Defendants on those 

claims was proper. See 20 C.F.R. § 1002.44(a) (“USERRA does not provide 

protections for an independent contractor.”); Ariz. Rev. Stat. § 23-1501(A)(3)(c) 

(providing that the statute covers instances involving an “employer [that] has 

terminated the employment relationship of an employee . . .” (emphasis added)). 

2. The district court properly granted summary judgment to the Hospital on 

the claim for breach of the implied covenant of good faith and fair dealing. 

Plaintiff argues that he was denied the benefit of renewing or renegotiating the 

Agreement. See Nolan v. Starlight Pines Homeowners Ass’n, 167 P.3d 1277, 1284 

(Ariz. Ct. App. 2007) (noting that liability attaches when a party “den[ies] the 

other party the reasonably expected benefits of the agreement”). But Plaintiff 
4 

obtained all the benefits of the Agreement. It expired by its own terms and did not 

guarantee renewal. And Plaintiff had the opportunity to reach out to the Hospital, 

before or when the Agreement expired, to renegotiate or renew the contract. He 

failed to do so for personal reasons. The Hospital had no obligation to reach out to 

Plaintiff about renewing the Agreement, nor were there any preexisting procedures 

regarding renegotiation or renewal. 

3. The district court properly granted summary judgment to Dr. Magu on 

the claim for aiding and abetting. Plaintiff’s allegations regarding Dr. Magu’s 

involvement in a purported “paper trail” scheme are purely speculative. No 

evidence in the record suggests that Dr. Magu knew of Plaintiff’s impending 

deployment or that he conspired with other the Hospital staff to establish a paper 

trail to cover up discrimination on account of Plaintiff’s military status. Wells 

Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Loc. No. 395 

Pension Tr. Fund, 38 P.3d 12, 23 (Ariz. 2002) (en banc) (noting that “defendants 

must know that the conduct they are aiding and abetting is a tort” because liability 

is based on proof of a scienter (citations and internal quotation marks omitted)).

4. The district court properly granted summary judgment to Dr. Magu on 

the claim for tortious interference. Under Arizona law, tortious interference 

requires, among other things, that a “third party improperly and intentionally 

interfere[] with the performance of [a] contract.” Wagenseller v. Scottsdale Mem’l 
5 

Hosp., 710 P.2d 1025, 1042 (Ariz. 1985) (en banc) (emphasis added), superseded 

in other respects by Ariz. Rev. Stat. § 23-1501 (1996). Dr. Magu was not a thirdparty because, at all relevant times and by Plaintiff’s own admission, he acted for 

and on behalf of the Hospital. Under Arizona law, a person who acts only on 

behalf of an entity is not a third-party for this purpose. Mintz v. Bell Atl. Sys. 

Leasing Int’l, Inc., 905 P.2d 559, 564–65 (Ariz. Ct. App. 1995) (citing Payne v. 

Pennzoil Corp., 672 P.2d 1322, 1327 (Ariz. Ct. App. 1983), and Barrow v. Ariz. 

Bd. of Regents, 761 P.2d 145, 152 (Ariz. Ct. App. 1988)). Nor does the evidence 

in the record suggest that Dr. Magu improperly interfered with the employment 

relationship between the Hospital and Plaintiff. See id. Accordingly, Plaintiff’s 

claim for tortious interference with contractual relations or business expectancy 

fails as a matter of law.

AFFIRMED.