                                                                           FILED
                            NOT FOR PUBLICATION                             APR 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALEJANDRO FOX,                                   No. 10-15511

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05737-WHA

  v.
                                                 MEMORANDUM *
BAKERY, CONFECTIONERY,
TOBACCO WORKERS AND GRAIN
MILLERS INTERNATIONAL UNION,
LOCAL NO. 24, AFL-CIO; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                       Argued and Submitted April 14, 2011
                            San Francisco, California

Before: GOODWIN and N.R. SMITH, Circuit Judges, and BLOCK, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      Alejandro Fox appeals the district court’s grant of summary judgment for

Defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

      1.     Fox’s contract-related claims (Counts 1, 2, and 5) are “substantially

dependent” on interpretation of Local 24’s bylaws and the Union’s constitution.

Sprewell v. Golden State Warriors, 266 F.3d 979, 990 (9th Cir. 2001). These

claims are thus preempted by § 301 of the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185. Id. Because they are preempted, the district court

correctly dismissed Counts 1, 2, and 5 as barred by the six-month statute of

limitations applicable to § 301 claims. Moore v. Local Union 569 of Int’l Bhd. of

Elec. Workers, 989 F.2d 1534, 1541(9th Cir. 1993).1

      2.     Fox’s “wrongful” discharge claim regarding 29 U.S.C. § 411(a)(5) of

the Labor Management Reporting and Disclosure Act (LMRDA) lacks merit. 29

U.S.C. § 411(a)(5) protects members’ procedural rights as members, but “does not

apply to removal or suspension from union office.” Grand Lodge of Int’l. Ass’n of

Machinists v. King, 335 F.2d 340, 342–43 (9th Cir. 1964). In addition, the district




      1
             In his Opening Brief, Fox asserts that waiver and estoppel prevent
preemption. Fox cites no cases that demonstrate that federal preemption can be
waived. While Fox may have been able to assert waiver on his contract claims had
they been timely, the statute of limitations bars consideration of his contract-related
claims. Moore, 989 F.2d at 1541.

                                           2
court correctly noted that § 411(a)(5) explicitly does not provide protections for

“nonpayment of dues.” 29 U.S.C. § 411(a)(5).

      3.     The district court also correctly granted summary judgment to

Defendants on Fox’s “retaliatory” discharge claim. Fox based this claim on both §

411(a)(1) and § 411(a)(2) of the LMRDA.

      Fox produced no evidence to show that he has been denied a right given to

other members, as required by § 411(a)(1) of the LMRDA. See Ackley v. W.

Conference of Teamsters, 958 F.2d 1463, 1473 (9th Cir. 1992). “[M]ere hope that

further evidence may develop prior to trial is an insufficient basis upon which to

justify the denial of the motion [for summary judgment].” Neely v. St. Paul Fire &

Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978).

      Under § 411(a)(2), Fox argued both retaliation and selective prosecution.

Fox failed to demonstrate that defendants’ non-discriminatory reason for his

discharge was “pretext for impermissible retaliation,” as was his burden under

either a retaliation or a selective prosecution claim. See Yartzoff v. Thomas, 809

F.2d 1371, 1377 (9th Cir. 1987); see also Casumpang v. Int’l Longshoremen’s and

Warehousemen’s Union, Local 142, 269 F.3d 1042, 1058–61(9th Cir. 2001)

(discussing whether there is a “causal link between the protected activities and an

adverse employment action”). The record reflects that, unlike where Fox was not


                                          3
suspended for missing a dues payment in 2002, Local 24 did not make an error in

reporting Fox’s dues.2

      4.     Fox’s claim for conspiracy cannot survive as a stand-alone cause of

action. Under California law, “to sustain a claim of civil conspiracy, [a plaintiff]

must prove that the [defendants] have committed an underlying tort.” Sprewell,

266 F.3d at 992.

      AFFIRMED.




      2
             For the first time in his reply brief, Fox asserts that he was not
removed from lower offices in Local 24 when he missed dues payments in 1997.
Fox did not raise this argument to the district court and did not address it in his
Opening Brief. Accordingly it is waived. Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1007 (9th Cir. 2006); Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994).

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