                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             OCT 10 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SANDRA JOHNSON; JEROME                           No.    16-15364
PRIMES,
                                                 D.C. No. 3:15-cv-03104-MEJ
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

KEOLIS AMERICA,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                     Argued and Submitted September 11, 2017
                             San Francisco, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,** District
Judge.

      Plaintiffs-Appellants Sandra Johnson and Jerome Primes (“Plaintiffs”)

appeal the district court’s order dismissing without leave to amend their First


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
Amended Complaint against Defendant-Appellee Keolis America for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6). We review de novo

the district court’s dismissal of a complaint for failure to state a claim. Vasquez v.

Los Angeles (“LA”) County, 487 F.3d 1246, 1249 (9th Cir. 2007). In addition, we

review for abuse of discretion the district court’s denial of leave to amend a

complaint. Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 2015). We affirm.



      1. Plaintiffs claim that Keolis America failed to provide them with notice of

a May 2012 “mass layoff” in violation of the Worker Adjustment and Retraining

Notification (“WARN”) Act. See 29 U.S.C. § 2102(a). Because Plaintiffs were

laid off on January 24, 2012, they did not face an “employment loss as a

consequence of” the May 2012 mass layoff. See 29 U.S.C. §§ 2101(a)(5), 2102(a).

As a result, Plaintiffs were not entitled to notice under the WARN Act. See Collins

v. Gee West Seattle LLC, 631 F.3d 1001, 1006–07 (9th Cir. 2011).

      2. Plaintiffs allege that the district court abused its discretion when it denied

them leave to amend their WARN Act claim. Plaintiffs were given the opportunity

to amend their initial complaint, but continued to assert the same factual

allegations. Any further amendments would be “futil[e]” and unlikely to “cure

deficiencies” in Plaintiffs’ First Amended Complaint. See Eminence Capital, LLC


                                           2
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (quoting Foman v. Davis, 371

U.S. 178, 182 (1962)).

       3. Plaintiffs maintain that Keolis America breached their collective

bargaining agreement under § 301 of the Labor Management Relations Act. See

29 U.S.C. § 185(a). However, Plaintiffs do not allege that they exhausted the

three-step grievance process outlined in the collective bargaining agreement. See

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983). In addition,

Plaintiffs’ First Amended Complaint does not allege that their union breached the

duty of fair representation. See id. at 164–65; see also Bliesner v. Commc’n

Workers of Am., 464 F.3d 910, 913–14 (9th Cir. 2006). Unable to allege those

predicate facts, this claim fails.

       Costs shall be awarded to Appellees.

       AFFIRMED.




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