                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

DARRIN ERLICHMAN,                                No. 12-55797

              Plaintiff - Appellant,             D.C. No. 8:10-cv-01803-CJC-PJW

  v.
                                                 MEMORANDUM*
STATER BROS. MARKETS; UNITED
FOOD AND COMMERCIAL WORKERS
LOCAL UNION 324,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                      Argued and Submitted January 10, 2014
                               Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

       Plaintiff-Appellant Darrin Erlichman appeals from the district court’s orders:

(1) denying his motion for additional discovery under Rule 56(d); (2) granting

summary judgment in favor of Defendant-Appellee United Food and Commercial

Workers Local Union 324 (Local 324); and (3) granting summary judgment in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
favor of Defendant-Appellee Stater Bros. Markets (Stater). Because the parties are

familiar with the facts and procedural history of this case, we repeat only those

facts necessary to resolve the issues raised on appeal. We affirm.

      After Local 324 moved for summary judgment, Erlichman opposed the

motion, claiming that under Rule 56(d) the district court should have permitted

discovery to continue. The discovery that Erlichman sought was not relevant to the

court’s resolution of Local 324’s summary judgment motion, and Erlichman has

not demonstrated “how allowing [the] discovery would have precluded summary

judgment.” Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir. 1998) (internal quotation

marks and citations omitted). Accordingly, the district court did not abuse its

discretion in denying Erlichman’s motion. See Hallett v. Morgan, 296 F.3d 732,

751 (9th Cir. 2002).

      The district court properly granted summary judgment in favor of Local 324

and properly denied Erlichman’s motion for relief from summary judgment. As to

Erlichman’s claim that Local 324 breached its duty of fair representation,

Erlichman failed to proffer evidence that Local 324’s conduct was “arbitrary,

discriminatory, or in bad faith.” United Steelworkers of Am. v. Rawson, 495 U.S.

362, 372 (1990). And Local 324 proffered evidence conclusively establishing that

the union acted within its discretion in determining how best to handle Erlichman’s


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grievance. See Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d 1146,

1153–54 (9th Cir. 2002); see also Marino v. Writers Guild of Am., E., Inc., 992

F.2d 1480, 1486 (9th Cir. 1993). Erlichman’s claim that Local 324 breached the

terms of the collective bargaining agreement fails as a matter of law, because

Erlichman has not “point[ed] to language in the collective bargaining agreement

specifically indicating an intent to create obligations enforceable against the union

by [] individual employees.” United Steelworkers, 495 U.S. at 374.

      The district court properly granted summary judgment in favor of Stater,

because the parties’ Settlement Agreement bars all claims against Stater. While

Erlichman argues that the agreement should be set aside because Local 324

breached a “fiduciary duty of loyalty” in executing the agreement, the collective

bargaining agreement does not create any such duty, and common law breach of

fiduciary duty claims are preempted by Section 301 of the Labor Management

Relations Act. Id. at 368–75; see also Audette v. Int’l Longshoremen’s &

Warehousemen’s Union, 195 F.3d 1107, 1112–13 (9th Cir. 1999).

      AFFIRMED.




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