                           NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                      DEC 22 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 ARTHUR M. SMITH, IV; et al.,                    No.    14-17569

                  Plaintiffs-Appellants,         D.C. No. 3:14-cv-01763-EDL

   v.
                                                 MEMORANDUM*
 UNITED AIRLINES, INC. and
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS AND AEROSPACE
 WORKERS, Local Lodge 1781,

                  Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                     Argued and Submitted December 15, 2016
                             San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

        Plaintiff-Appellants Arthur M. Smith IV, Richard Tran, and Aaron T.

Moody work for United Airlines as Lead Ramp Servicemen at San Francisco

International Airport (SFO). They assert a “hybrid” claim for breach of contract


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
against Defendant-Appellee United Airlines, Inc. (United) and breach of the duty

of fair representation against Defendant-Appellee International Association of

Machinists and Aerospace Workers (the Union). The district court dismissed the

complaint as time-barred and for failure to state a claim. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      Plaintiffs’ “hybrid” claim is subject to a six-month statute of limitations.

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169 (1983). “[T]he six-

month period generally begins to run when an employee knows or should know of

the alleged breach of duty of fair representation by a union.” Galindo v. Stoody

Co., 793 F.2d 1502, 1509 (9th Cir. 1986). Here, plaintiffs need to show that their

claims did not accrue before October 16, 2013, because they filed this action in the

Northern District of California on April 16, 2014.

      Plaintiffs advance two possible sets of facts: (1) that United and the Union

made “conscious decisions” not to respond to the asserted grievance; or (2) “upon

information and belief,” they “mutually agreed to extend the time limits”

governing their response obligations under the collective bargaining agreement

(CBA), thereby “holding in abeyance any grievances” until ratification of the new

CBA. Under either scenario, plaintiffs’ claims are time-barred.

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      1. Plaintiffs filed their grievances with Union representatives in January and

February 2013. Smith avers he heard nothing from either party after February

2013. Moody and Tran were likewise told in February the Union would not be

filing complaints in either of their names. Accordingly, given this period of

inaction, plaintiffs either knew or should have known the Union was not fulfilling

its obligations around March 2013. Further, as to all three plaintiffs, the August

2013 letter sent by their counsel indicates they knew their grievances were not

being pursued because the letter asks the Union to “commence a grievance process

on the issue of Lead pay.”

      Tolling does not apply after plaintiffs knew or should have known that their

grievances were not being pursued—roughly March 2013—because at that point,

they no longer were actively availing themselves of the CBA’s mandatory

grievance procedures. Conley v. Int’l Bhd. of Elec. Workers, Local 639, 810 F.2d

913, 915 (9th Cir. 1987). Moreover, “once a claimant retains counsel, tolling

ceases because she has gained the means of knowledge of her rights and can be

charged with constructive knowledge of the law’s requirements.” Leorna v. U.S.

Dept. of State, 105 F.3d 548, 551 (9th Cir. 1997) (internal quotation marks

omitted); see also Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.

                                          3
1987) (applying this principle to “hybrid” claim under § 301 of the Labor

Management Relations Act). Accordingly, any tolling discontinued no later than

August 2013 when plaintiffs obtained counsel and sent their letter to the Union.

      2. Under the second set of facts, plaintiffs do not allege an adequate basis to

infer defendants agreed to extend the time limits. See Eclectic Props. E., LLC v.

Marcus & Millichap Co., 751 F.3d 990, 996‒97 (9th Cir. 2014) (describing the

plausible pleading standard). As such, the statute of limitations is not tolled, and

plaintiffs’ claims accrued no later than August 2013.

      Plaintiffs do not allege they were aware of the agreement, much less who

told them of it or any facts to support its existence, such as whether defendants

executed the written document the CBA requires to effect a waiver of the strict

time limits in the grievance procedure. Nor do plaintiffs allege, as they argue in

their brief, that the Union told them to hold off on filing their grievance because

defendants would resolve the Lead pay issue through negotiations for the 2013

CBA. The August 2013 letter also contradicts the existence of the agreement

because it indicates plaintiffs were actively questioning the Union’s handling of the

grievance and demanding the start of a new process—not waiting for a contractual

resolution of the Lead pay issue. Given the paucity of factual detail, the

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contradicting statements in the Second Amended Complaint, and that plaintiffs’

theory rests entirely “upon information and belief,” the second scenario involving

an “agreement to extend the time limits” does not state a plausible claim for relief.

In any event, even if, as plaintiffs urge, the alleged agreement to extend the time

limits meant plaintiffs were pursuing their claims through contractually mandated

procedures—entitling them to tolling—the defendants’ alleged agreement is a

rational exercise of judgment necessarily dooming plaintiffs’ “hybrid” claim on the

merits. See Burkevich v. Air Line Pilots Ass’n Int’l, 894 F.2d 346, 349 (9th Cir.

1990) (allegations of arbitrary conduct do not suffice when a Union exercises its

judgment).

      3. The district court did not abuse its discretion in denying leave to amend

because amendment would be futile. See Zixiang Li v. Kerry, 710 F.3d 995, 999

(9th Cir. 2013).

      AFFIRMED.




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