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Jeffrey Steven Garrett v. Harry Turner

March 21, 2011

JEFFREY STEVEN GARRETT,
PLAINTIFF,
v.
HARRY TURNER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS IN PART WITH PREJUDICE AND IN PART WITH LEAVE TO AMEND (re: Dkt. #4)

Presently before the Court is Defendants' unopposed motion to dismiss Plaintiff's complaint. See Dkt. #4. The Court deems this matter appropriate for resolution without oral argument. See Civ. L.R. 7-1(b). Accordingly, the March 24, 2011 motion hearing and Case Management Conference are vacated. For the reasons described below, Defendants' motion is

GRANTED in part with prejudice and GRANTED in part with leave to amend.

I.BACKGROUND

Plaintiff Jeffrey Garrett filed a claim in Small Claims Court for the Superior Court of Santa Clara County on December 1, 2010. See Exh. A. to Defs.' Notice of Removal. In that document, Plaintiff alleges that he "was a member of Local Lodge #93 for 6 months at Northrop Grumman," "was overcharged EVERY week for dues," and that the "Union did not help him when [he] was terminated." Plaintiff claimed that Defendants owed him $730.00 for the alleged overcharged dues that occurred between October 2009 and April 2010. Plaintiff named as Defendants: Harry Turner, Laura Saiu, Richard Breckenridge, and Kim Foss.

Defendants timely removed this matter on December 9, 2010. See Defs.' Notice of Removal. According to Defendants, all Defendants named by Plaintiff are individual officers or representatives of Machinists Local Lodge 93 (the "Union"), a labor organization. In addition, Defendants state that Plaintiff was an employee under the terms and conditions of a collective bargaining agreement between the Union and the employer. Id. at 2. Defendants removed this action arguing that it arises under, and is preempted by, §301 of the Labor Management Relations

On December 21, 2010, Defendants moved to dismiss on the ground that Union officers acting in their union capacity are shielded from liability under the LMRA. Upon reassignment, Act ("LMRA"), 29 U.S.C. §185.

Defendants' motion was set for a hearing on March 24, 2011. Plaintiff, proceeding pro se in this 13 action, did not file an Opposition.

"proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Shroyer v. New Cingular Wireless Services, Inc., 606 F.3d 658, 664 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering whether the complaint is sufficient to state a claim, the court must accept as true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, the court need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d

If the Court concludes that the complaint should be dismissed, it must then decide whether to grant leave to amend. "[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured

II.LEGAL STANDARDS

Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is 1049, 1055 (9th Cir. 2008).

by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In addition, the Court recognizes that it has "a duty to construe pro se ...


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