United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
Bobby Jones is proceeding in this action pro se. This matter
was referred to the undersigned in accordance with Local Rule
302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the
undersigned is defendants' motion to dismiss the second
amended complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (ECF No. 29.) For the reasons
stated below, the undersigned will recommend that
defendant's motion to dismiss be granted and the second
amended complaint be dismissed without leave to amend.
proceeding pro se, commenced this action on November 30,
2018, by filing a complaint and paying the required filing
fee. (ECF No. 1.) Plaintiff was twice granted leave to amend
and is now proceeding on a second amended complaint. (ECF
Nos. 14 & 22.) Therein, plaintiff alleges that defendant
SEIU, United Healthcare Workers-West failed to represent
plaintiff “in obtaining his long term disability
benefits under ERISA.” (Sec. Am. Compl. (ECF No. 23) at
As a result, plaintiff “was forced to file a complaint
with the FEDERAL COURT to recover his disability benefits,
and PREVAILED.” (Id.) Defendant “refuses
to reimburse plaintiff for the attorney fees and costs for
pursuing his disability payments.” (Id.)
filed the pending motion to dismiss on April 30, 2019. (ECF
No. 26.) Plaintiff filed an opposition on May 6, 2019. (ECF
No. 27.) Defendant filed a reply on May 8, 2019. (ECF No.
Legal Standards Applicable to Motions to Dismiss Pursuant to
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
general, pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 676
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts which it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and the plaintiff's
complaint necessarily relies on them, and matters of public
record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001).
of the second amended complaint and defendant's motion to
dismiss finds that the second amended complaint should be
dismissed for at least two reasons.
second amended complaint alleges that defendant owed
plaintiff “a duty of fair representation[.]”
(Sec. Am. Compl. (ECF No. 23) at 2.) Pursuant to § 301
of the Labor Management Relations Act, 29 U.S.C. § 185,
“[a] union owes a duty of fair representation to those
it represents, and an employer must honor the terms of a CBA
[Collective Bargaining Agreement] to which it is a
party.”Bliesner v. Commc'n Workers of
Am., 464 F.3d 910, 913 (9th Cir. 2006). “A
union's duty of fair representation grows ...