         09-5032-cv
         Serrano v. USA United Transit Bus Inc.



                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO A SUMMARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
     OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.       WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
     FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
     PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
     COUNSEL.

 1            At a stated term of the United States Court of                  Appeals
 2       for the Second Circuit, held at the Daniel Patrick                  Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                  City of
 4       New York, on the 23 rd day of November, two thousand                ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                AMALYA L. KEARSE,
10                CHESTER J. STRAUB,
11                     Circuit Judges.
12       __________________________________________
13       JOSE SERRANO, LUIS BENIQUEZ,
14
15                         Plaintiffs-Appellants,
16
17                         v.                                     09-5032-cv
18
19       USA UNITED TRANSIT, INC., THOMAS
20       SCIALPI, LARRAINE LIA CASTELLANO,
21       FRANCIS “FRANK” BRACCIA, CAROL
22       PAPACENA, CLARENCE “JAY” JONES,
23       AMALGAMATED TRANSIT UNION LOCAL 1181,
24       NICHOLAS MADDALONE,
25
26                         Defendants-Appellees. *


                  *
               The Clerk of the Court is directed to amend the
         official caption to conform to the caption in this order.
 1   FOR APPELLANTS:        Jose Serrano, pro se, Bronx, NY.
 2
 3                          Luis Beniquez, pro se, Brooklyn, NY.
 4
 5   FOR APPELLEES:         Anthony J. Cincotta, Shrewsbury, NJ,
 6                          and Eric C. Stuart, Ogletree,
 7                          Deakins, Nash, Smoak & Stewart,
 8                          P.C., New York, NY (Counsel for USA
 9                          United Transit, Inc.).
10
11                          Richard A. Brook and Jessica Drangel
12                          Ochs, Meyer, Suozzi, English &
13                          Klein, P.C., New York, NY (Counsel
14                          for Amalgamated Transit Union Local
15                          1181).

16        Appeal from a judgment of the United States District
17   Court for the Eastern District of New York (Gleeson, J.).
18
19        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        Appellants Jose Serrano and Luis Beniquez, pro se,
24   appeal the district court’s judgment granting the
25   Defendants’ Fed. R. Civ. P. 12(b)(6) motions to dismiss
26   their complaint, which alleged a hybrid § 301 (of the Labor
27   Management Relations Act)/fair representation claim. See 29
28   U.S.C. § 185; DelCostello v. Int’l Bhd. of Teamsters, 462
29   U.S. 151, 164-65 (1983). The district court denied
30   Plaintiffs’ request for equitable tolling of the limitations
31   period, and dismissed the claims as untimely filed. We
32   assume the parties’ familiarity with the underlying facts,
33   the procedural history, and the issues presented for review.
34
35        “We review de novo a district court’s dismissal of a
36   complaint pursuant to Rule 12(b)(6), construing the
37   complaint liberally, accepting all factual allegations in
38   the complaint as true, and drawing all reasonable inferences
39   in the plaintiff’s favor.” Chambers v. Time Warner, Inc.,
40   282 F.3d 147, 152 (2d Cir. 2002). We review a district
41   court’s denial of equitable tolling for abuse of discretion.
42   See Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d
43   74, 81 (2d Cir. 2003). Hybrid § 301/fair representation

                                  2
 1   claims have a six-month statute of limitations. See Carrion
 2   v. Enter. Ass’n., Metal Trades Branch Local Union 638, 227
 3   F.3d 29, 33-34 (2d Cir. 2000) (citing DelCostello, 462 U.S.
 4   at 164-65).
 5
 6        Based on our review of the record, we conclude that the
 7   district court correctly determined that Serrano and
 8   Beniquez filed their complaint well after the expiration of
 9   the six-month statute of limitations. The court did not
10   abuse its discretion in determining that Appellants did not
11   establish the “reasonable diligence” and “extraordinary”
12   circumstances necessary for equitable tolling. See Zerilli-
13   Edelglass, 333 F.3d at 80-81. Appellants’ letter to the
14   Department of Labor on April 14, 2008, shows awareness of
15   the facts that gave rise to their claim more than a year
16   before the present action was filed. Moreover, they do not
17   explain how Serrano’s mental illness stood in the way of his
18   ability to comply with the limitations period; their
19   participation in other litigation during the same time
20   period belies any such inhibition.
21
22        We have considered all of the remaining arguments on
23   appeal and found them to be without merit. For the
24   foregoing reasons, the order of the district court is hereby
25   AFFIRMED.
26
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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