Chissie v. Winco Foods, LLC et al

Filing 91

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr., on 2/13/12 ORDERING that Defendants' 54 , 55 Motions forSummary Judgment are GRANTED on grounds that Plaintiff's state law claims against Defendants are preempted by the LMRA . Plaintiff is permitted to file an amended complaint stating claims under the LMRA, should she choose to do so. Any such amended complaint must be filed not later than 20 days following the date of this Memorandum and Order. If no amended pleading has been filed at the conclusion of said 20 day period, the Court will enter judgment in favor of Defendants without further notice. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LESLIE ANN CHISSIE,
No. 2:09-cv-02915-MCE-CKD

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Plaintiff,

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v.

MEMORANDUM AND ORDER

WINCO FOODS, LLC; JOEL CLARK,
and DOES 1 through 25,
inclusive,

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Defendants.

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----oo0oo----

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Through the present lawsuit, Plaintiff Leslie Ann Chissie

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(“Plaintiff”) seeks damages for disciplinary actions taken

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against her by her former employer, Defendant WinCo Foods, LLC

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(“WinCo”).

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was removed to this Court on grounds that the state law claims it

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contained were preempted by Section 301 of the Labor Management

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Relations Act of 1947, 29 U.S.C. § 185 (“LMRA”) and that federal

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jurisdiction was accordingly conferred by the LMRA.

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Plaintiff’s action, initially filed in state court,

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WinCo, along with Plaintiff’s individually named supervisor,

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Defendant Joel Clark, now move for summary judgment as to

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Plaintiff’s complaint, or alternatively for summary adjudication

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as to discrete claims asserted within that Complaint.

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allege, inter alia, that they are entitled to judgment as a

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matter of law as to Plaintiff’s state law claims because of LMRA

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preemption.

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Plaintiff’s state law claims are indeed preempted, summary

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judgment will be granted on that basis.1

Defendants

As set forth below, because this Court finds that

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BACKGROUND

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In mid-2008, Plaintiff, who had been the Bakery Manager for

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WinCo’s Yuba City, California, store since April of 1997, was

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accused by a coworker of making offensive and discriminatory

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remarks.

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that she wanted to leave California to get away from “gays and

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blacks.”

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sex marriage as “fucking nasty.”

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Plaintiff’s management status, an investigation into her conduct

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ensued.

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Plaintiff was heard stating in the store’s breakroom

Plaintiff also allegedly referred to a co-worker’s same
Particularly in view of

Plaintiff and others were interviewed.

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Because oral argument was not of material assistance, the
Court ordered this matter suitable for decision without oral
argument. Eastern District Local Rule 230(g).
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According to Defendants, Plaintiff initially denied making

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the claimed statements.

She then conceded to having commented,

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after reading a newspaper in the breakroom, that the state was

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“messed up” and that she someday wanted to retire outside the

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state.

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marriages or about race.

She denied making any specific comments about same sex

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During a second interview with both the Store Manager,

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Defendant Clark, and Assistant Store Manager Denise Bailey,

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Plaintiff continued to deny the comments attributed to her.

Once

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the investigation was complete, WinCO determined that Plaintiff

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had been forthcoming about her conduct.

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Plaintiff was a member of the Department Hourly Manager

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Employee Association (“DMHEA”).

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entered into a Collective Bargaining Agreement (“CBA”) which set

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forth the terms of Plaintiff’s employment with WinCo.

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Undisputed Fact (“UF”) No. 3.)

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can be immediately terminated for gross misconduct as defined by

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WinCo’s Company Personnel Policies. (Id. at No. 4.)

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and violations of WinCo’s Non-Discrimination and Anti-Harassment

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Policy are both cited in the Company Personnel Policies as

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examples of gross misconduct that may result in immediate

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discharge.

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Personnel Policies and understood that she could be terminated

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for such violations.

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2008, Plaintiff was terminated by Winco pursuant to the CBA for

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dishonesty and for having violated WinCo’s Non-Discrimination and

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Anti-Harassment Policy.

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(Id. at Nos. 5-6.)

DMHEA and WinCo negotiated and

(WinCo’s

The CBA provides that employees

Dishonesty

Plaintiff signed a copy of the

(Id. at Nos. 7 and 8.)

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On September 17,

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She was not paid vacation pay at that time because the CBA

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provided that no such benefits were available in the event of

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gross misconduct.

(Id. at No. 18.)

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Plaintiff grieved her initial termination to the DHMEA

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grievance committee, which upheld WinCo’s termination decision.

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Thereafter, as a result of a second appeal to the Hourly Employee

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Association (“HEA”) grievance committee, that committee decided

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to reinstate Plaintiff, but deemed her time off between

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termination and reinstatement to be an unpaid suspension.

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Although the HEA grievance committee initially determined that

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Plaintiff should be reinstated to her former position as Bakery

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Manager, during a subsequent November 1, 2008, meeting with

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Defendant Clark and the Assistant Store Manager (Denise Bailey),

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Plaintiff was informed that WinCo had in fact decided to demote

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Plaintiff from Bakery Manager to a cashier.

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¶ 10.2

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policy managers who receive suspensions are subject to demotion.

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See Dep. of Ben Swanson, 91:4-16; 96:22-97:21, pertinent portions

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of which are attached as Ex. B to the Decl. of Jasmine L.

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Anderson.

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Decl. of Joel Clark,

According to WinCo, pursuant to established company

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The Court notes that numerous objections have been filed
by both sides to various declarations submitted in this matter,
including objections to the Declaration of Joel Clark offered by
Defendants. To the extent the Court incorporates any portions of
Declarations from either side within the instant Memorandum and
Order, said objections are overruled. Otherwise, with respect to
the vast majority of the objections, the matters they encompass
were not pertinent to the Court’s decision. Therefore the Court
need not rule on said objections and it declines to do so.
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Although Plaintiff appears to dispute that practice by way of

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opposition to this motion, in her deposition she appears to

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concede that WinCo had the right to demote employees under the

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CBA.

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Pl.’s Dep., 242:10-20, Ex. A to the Anderson Decl.
Despite being told by Defendant Clark to report to work as a

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cashier the day following the above-described meeting, Plaintiff

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failed to do so and called in sick for her scheduled shift.

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was consistent with her statement to Defendant Clark the day

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beforehand that she would decline to report for the cashiering

This

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shift.

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medical documentation as to her illness by November 7, 2008, or

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be considered a voluntary quit.

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and certified letter to Plaintiff dated November 4, 2008,

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attached as Ex. 4 thereto.

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the deadline to provide the requested medical documentation had

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passed, Plaintiff was deemed a voluntary quit.

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Clark thereafter wrote Plaintiff and asked her to provide

See Decl. Of Joel Clark, ¶ 10,

On November 12, 2008, five days after

Plaintiff filed the present lawsuit approximately nine

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months later, on August 18, 2009, in the Superior Court of the

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State of California in and for the County of Sutter.

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timely removed the matter to this Court on October 20, 2009 on

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grounds that Plaintiff’s state law claims contained therein in

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fact were subject to Section 301 of the LMRA, therefore vesting

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jurisdiction in federal court.

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remand her suit back to state court, in part on grounds that the

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LMRA did not apply because no interpretation of the CBA was

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needed to decide the issues presented by the case.

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Defendants

Plaintiff thereafter moved to

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In opposition, Defendants disagreed, arguing that Plaintiff’s

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claims were in fact preempted by the LMRA because they could not

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be resolved without interpreting the terms of the CBA.

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This Court denied Plaintiff’s Motion to Remand by Memorandum

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and Order filed February 12, 2010, finding that it did have

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jurisdiction because “Plaintiff’s state law claims are preempted

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by the LMRA...”

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it “will undoubtedly need to interpret and construe the CBA to

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ascertain the parties’ expectations both in terms of the

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conditions of employment and the nature and extent of any

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necessary discipline.”

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ECF No. 20, pp. 11-12.

As the Court explained,

Id. at 7:16-20.

By way of the motions for summary judgment presently before

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the Court, Defendants now seek dismissal of Plaintiff’s state law

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claims in their entirety as preempted, an action which the

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Court’s previous Memorandum and Order largely determined, at

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least in broad conceptual terms, already.

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asks the Court to apply LMRA preemption analysis to each of

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Plaintiff’s ten state law causes of action.

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addition to arguing preemption, Defendants alternatively seek

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summary adjudication on various other grounds, including failure

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to state a valid claims, in any event and failure to exhaust

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required administrative remedies.

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The instant motion

Moreover, in

STANDARD

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The Federal Rules of Civil Procedure provide for

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summary judgment when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with

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affidavits, if any, show that there is no genuine issue as to any

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material fact and that the moving party is entitled to a judgment

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as a matter of law.”

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principal purposes of Rule 56 is to dispose of factually

Fed. R. Civ. P. 56(c).

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unsupported claims or defenses.

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One of the

477 U.S. 317, 323-324 (1986).

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Celotex Corp. v. Catrett,

Rule 56 also allows a court to grant summary adjudication on

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part of a claim or defense.

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seeking to recover upon a claim ... may ... move ... for a

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summary judgment in the party’s favor upon all or any part

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thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

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374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

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Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

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The standard that applies to a motion for summary adjudication is

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the same as that which applies to a motion for summary judgment.

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See Fed. R. Civ. P. 56(a), 56(c); Mora v. ChemTronics,

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16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

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See Fed. R. Civ. P. 56(a) (“A party

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A party seeking summary judgment always bears the
initial responsibility of informing the district court
of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to
interrogatories, and admissions on file together with
the affidavits, if any,” which it believes demonstrate
the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)).

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If the moving party meets its initial responsibility, the

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burden then shifts to the opposing party to establish that a

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genuine issue as to any material fact actually does exist.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

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253, 288-89 (1968).

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In attempting to establish the existence of this factual

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dispute, the opposing party must tender evidence of specific

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facts in the form of affidavits and/or admissible discovery

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material in support of its contention that the dispute exists.

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Fed. R. Civ. P. 56(e).

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the fact in contention is material, i.e., a fact that might

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affect the outcome of the suit under the governing law, and that

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the dispute is genuine, i.e., the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

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(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

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Workers, 971 F.2d 347, 355 (9th Cir. 1987).

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“before the evidence is left to the jury, there is a preliminary

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question for the judge, not whether there is literally no

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evidence, but whether there is any upon which a jury could

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properly proceed to find a verdict for the party producing it,

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upon whom the onus of proof is imposed.”

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251 (quoting Schuylkill and Dauphin Improvement Co. v. Munson,

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81 U.S. 442, 448 (1871)).

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“[w]hen the moving party has carried its burden under Rule 56(c),

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its opponent must do more than simply show that there is some

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metaphysical doubt as to the material facts ....

The opposing party must demonstrate that

Stated another way,

Anderson, 477 U.S. at

As the Supreme Court explained,

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Where the record taken as a whole could not lead a rational trier

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of fact to find for the nonmoving party, there is no ‘genuine

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issue for trial.’”

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Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the

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opposing party is to be believed, and all reasonable inferences

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that may be drawn from the facts placed before the court must be

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drawn in favor of the opposing party.

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Nevertheless, inferences are not drawn out of the air, and it is

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the opposing party’s obligation to produce a factual predicate

Anderson, 477 U.S. at 255.

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from which the inference may be drawn.

Richards v. Nielsen

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Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

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aff’d, 810 F.2d 898 (9th Cir. 1987).

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ANALYSIS

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In analyzing the preemptive force of the LMRA under the

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particular circumstances of this case, a general discussion of

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LMRA preemption may initially be helpful.

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the LMRA, federal courts have jurisdiction over “[s]uits for

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violation of contracts between an employer and a labor

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organization representing employees.”

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statute was a “mandate” for federal courts “to fashion a body of

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federal common law to be used to address disputes arising out of

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labor contracts.”

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209 (1985).

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“preemptive force of section 301 is so powerful as to displace

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entirely any state cause of action for violation of contracts

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between an employer and a labor organization.”

Under Section 301 of

29 U.S.C. § 185(a).

The

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

As a result of this expansive mandate, the

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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1,

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23 (1983).

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law is considered, from its inception, a federal claim, and

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therefore arises under federal law.”

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Williams, 482 U.S. 386, 393 (1987).

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A preempted claim “purportedly based on [a]...state

Caterpillar, Inc. v.

It is therefore “well settled that Section 301 preempts

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state law claims which are founded on rights created by a

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collective bargaining agreement.”

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Freightways, Inc., 209 F.3d 1122, 1129 (9th Cir. 2000).

Cramer v. Consolidated
The LMRA

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preempts application of a state law “if such application requires

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the interpretation of a collective-bargaining agreement.”

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Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411

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(1988).

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dependent upon analysis of the terms of an agreement made between

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the parties in a labor contract, that claim must either be

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treated as a § 301 claim or dismissed as pre-empted by federal

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labor-contract law.”

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Chevron U.S.A.,Inc., 914 F.2d 1265, 1268 (9th Cir. 1990)(citing

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Caterpillar v. Williams, 482 U.S. at 394).

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“When resolution of a state-law claim is substantially

Lueck, 471 U.S. at 220; see also Stikes v.

The Court of Appeals for the Ninth Circuit recently

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clarified the analysis for determining whether § 301 preempts a

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particular state cause of action.

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A court must first inquire

whether the asserted cause of action involves a right
conferred upon an employee by virtue of state law, not
by a CBA. If the right exists solely as a result of
the CBA, then the claim is preempted, and our analysis
ends there. If, however, the right exists
independently of the CBA, we must still consider
whether it is . . . substantially dependent on analysis
of a collective-bargaining agreement. If such
dependence exists, then the claim is preempted by
section 301; if not, then the claim can proceed under
state law.
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Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059-60 (9th Cir.

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2007) (internal citations and quotations omitted).

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To determine whether a state law right is substantially

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dependent on the terms of a CBA, courts must decide whether a

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particular claim can be resolved by “look[ing] to” as opposed to

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interpreting the CBA.

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(1994); Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691

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(9th Cir. 2001).

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CBA are not preempted; those interpreting the CBA are.

See Livadas v. Bradshaw, 512 U.S. 107, 125

Claims that may be resolved by looking to the
This

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distinction is “not always clear or amenable to a bright-line

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test.”

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Circuit decisions provide some guidance in making this

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determination.

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that none of its terms is reasonably in dispute,” see id. at 692,

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nor “the simple need to refer to bargained-for wage rates in

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computing [a] penalty,” see Livadas, 512 U.S. at 125, is enough

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to warrant preemption.

Cramer, 255 F.3d at 691.

Prior Supreme Court and Ninth

Neither “‘look[ing]’ to the CBA merely to discern

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Having reviewed the general principles applicable to

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preemption, by the LMRA, of claims rooted in state law, we now

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turn to the particular claims asserted by Plaintiff herein.

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A.

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Plaintiff’s Claims Premised on Alleged “Tortious”
Discipline.

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In Plaintiff’s First Cause of Action for Tortious Discharge

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in Violation of Public Policy, she alleges she was “improperly

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terminated” for dishonesty despite provisions in the CBA

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requiring that dismissals be for “cause.”

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Compl., ¶ 49-50.3

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procedure she proceeded to utilize and alleges discrimination and

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harassment by Clark, in contravention of the public policy and

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laws of the State of California, due to his allegedly wrongful

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investigation concerning Plaintiff’s purportedly offensive

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comments about blacks and gays.

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specifically claims she was harassed for having utilized “the

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grievance procedure contained in the Wage Agreement [CBA].”

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at 52.

Plaintiff goes on to describe the grievance

Id. at 50-51.

Plaintiff

Id.

Plaintiff contends that WinCo “authorized and ratified”

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the improprieties that ultimately resulted in her wrongful

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termination, suspension, and demotion upon reinstatement.

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59-60.

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Id. at

In order to determine whether management’s actions were

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indeed discriminatory and harassing, it is clear that the Court

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will have to interpret the terms of the CBA to determine whether

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Plaintiff was disciplined in a manner consistent with that

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agreement.

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to be carefully analyzed in that regard.

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determination of Plaintiff’s claim is “substantially dependent”

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on the terms of the CBA mandates preemption.

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Plaintiff’s state law claim for tortious discharge cannot survive

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scrutiny under Section 301.

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491 F.3d at 1059-60.

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Indeed, the provisions contained in the CBA will have
The fact that

As such,

Burnside v. Kiewit Pac. Corp.,

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The Court notes that Defendants have filed a Request for
Judicial Notice as to Plaintiff’s Complaint along with several
other filings in this matter. While it is not necessary to
request judicial notice as to the contents of the Court’s file
herein, Defendants’ request is unopposed and will accordingly be
granted in any event.
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The LMRA “preempts all state-law causes of action the evaluation

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of which requires interpretation of a labor contract’s terms.”

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Hayden v. Reickerd, 957 F.2d 1506, 1508-09 (9th Cir. 1991); see

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also 29 U.S.C. § 185(a).

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The same preemption analysis equally applicable to

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Plaintiff’s Second Cause of Action for Tortious Discharge in

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Violation of Public Policy, as well as her Third Cause of Action

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for Tortious Discipline in Violation of Public Policy.

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addition, the Fourth Cause of Action for Retaliation is similarly

In

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dependant on interpretation of the CBA in claiming that WinCo’s

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termination, suspension and demotion all were done to retaliate

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against Plaintiff “for her utilization of the grievance

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procedure” contained within the CBA.

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the CBA and its provisions, in determining whether WinCo’s

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actions were in accordance therewith or instead amounted to

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wrongful retaliation, stands front and center.

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least, Plaintiff’s claims are “inextricably intertwined with

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consideration of the terms of [a] labor contract,” and are

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accordingly preempted.

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citing Miller v. AT&T Network Sys., 850 F.2d 543, 545 (9th Cir.

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1988).

Compl., ¶ 105.

Once again,

At the very

Hayden v. Reickerd, 957 F.2d at 1509,

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B.

Plaintiff’s Defamation Claim.

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Plaintiff fares no better in arguing that her Fifth Cause of

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Action for defamation, escapes LMRA preemption.

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based on “allegations of racism, dishonesty, gross misconduct,

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and harassment” that Plaintiff claims are defamatory.
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That claim is

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Compl., ¶ 115.

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defamation, in assessing the merits of Plaintiff’s claim in that

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regard, it will become necessary to review the terms of the CBA

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to determine whether Plaintiff did indeed engage in gross

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misconduct (dishonesty and violation of WinCo’s anti-harassment

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policy) as defined by the CBA.

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122 Cal. App. 4th 520, 531 (2004) (defamation claim preempted by

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the LMRA because it “arose in connection with and [is]

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inextricable from the actual disciplinary or investigative

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Since it is axiomatic that truth is a defense to

See Ruiz v. Sysco Food Services,

procedures involved, as set forth in the CBA.”).

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In arguing that her defamation claim is not in fact

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preempted, Plaintiff cites language from Hayden v. Reickerd,

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supra, to the effect that “[n]on-negotiable state law rights....

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independent of any right established by contract are not

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preempted...”

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explain that Congress never intended “to preempt state rules that

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proscribe conduct... independent of a labor contract.”

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key to that proposition, however, is the preservation of state

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law claims independent from the terms and provisions of a CBA.

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Here, as explained above, neither plaintiff’s defamation claim or

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her other state law claims can be considered independent from the

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CBA.

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957 F.2d at 1509.

The Hayden court went on to

Consequently they are preempted.

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Id.

The

C.

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Plaintiff’s Claim for Intentional Infliction of
Emotional Distress.

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3

Plaintiff’s Sixth Cause of Action for Intentional Infliction

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of Emotional Distress similarly fails.

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alleges in her complaint that Defendants’ “refusal to adhere to,

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uphold and abide by the terms of the Wage Agreement was intended

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to, and did cause, severe emotional distress... and was done with

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a conscious disregard of the probability of causing such

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distress.”

Compl., ¶ 131.

Plaintiff specifically

As Defendants point out, such claims

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clearly require the Court to interpret the terms of the CBA, and

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accordingly are preempted by the LMRA.

12

Products, Inc., 897 F.2d 400, 403 (9th Cir. 1990) (intentional

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infliction claim preempted by LMRA); see also Chmiel v. Beverly

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Wilshire Hotel Co., 873 F.2d 1283, 1286 (9th Cir. 1989)

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(intentional infliction claim preempted because resolution of the

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claim was inextricably intertwined with the interpretation of the

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CBA).

See Harris v. Alumax Mill

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D.

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Plaintiff’s Contractually Based Claims.

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Plaintiff’s contractually based claims are, if anything,

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even more rooted in the provisions of the CBA.

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Seventh Cause of Action for Breach of Contract specifically

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alleges various breaches of the CBA.

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Plaintiff’s

Compl., ¶¶ 138-142.

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Similarly, Plaintiff’s Eighth Cause of Action for Breach of the

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Implied Covenant of Good Faith and Fair Dealing alleges that the

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CBA, which Plaintiff describes as an “employment contract,”

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contained an implied covenant of good faith and fair dealing that

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Defendants abrogated.

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consequently also directly implicate the terms of the CBA and

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are, as such, preempted.

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Hotel Co., 873 F.2d at 1285-86 (both contract and breach of the

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covenant claims preempted by Section 301 to the extent they

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Id. at 144, 147-48.

Those claims

See, e.g., Chmiel v. Beverly Wilshire

invoke the CBA).

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E.

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Plaintiff’s Claim for Unpaid Vacation Pay.

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Plaintiff’s Tenth (and final) Cause of Action4 for recovery

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of unpaid vacation pay asserts that Defendants failed to pay

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Plaintiff the unused portion of her vacation pay when they

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terminated her on September 17, 2008.

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Plaintiff concedes that the CBA authorizes forfeiture of vacation

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pay upon termination for “gross misconduct,” she claims the CBA’s

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provisions in that regard are prohibited by California Labor Code

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§ 227.3.

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Compl., ¶ 162.

While

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4

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With respect to Plaintiff’s Ninth Cause of Action for
Improper Denial of COBRA benefits under 29 U.S.C. § 1161,
Plaintiff does not oppose dismissal of that claim. WinCo’s
Opp’n, 20:4-5.
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1

In fact, California Labor Code § 227.3 creates an exception

2

to the general rule that any unpaid vacation wages shall be paid

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at termination when the applicable CBA provides to the contrary.

4

As the statute states, “Unless otherwise provided by a

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collective-bargaining agreement.... all vested vacation shall be

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paid (upon termination).”

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CBA plainly does carve out an exception in the event of

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termination for gross misconduct: “Vacations earned but not taken

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will not be paid to employees terminated for gross misconduct

Cal. Labor Code § 227.3.

Here, the

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under the Company Personnel Policies defining gross misconduct.

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CBA, attached as Ex. 1 to the Decl. of Joel Clark, Section I,

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paragraph 6.

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Plaintiff’s claim for unpaid vacation is also preempted by the

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LMRA since the propriety of Defendants’ failure to pay such wages

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rests exclusively on the provisions of the CBA which must

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necessarily be interpreted.

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1508-09.

Once again, any analysis of the merits of

See Hayden v. Reickerd, 957 F.2d at

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CONCLUSION

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For the reasons set forth above, Defendants’ Motions for

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Summary Judgment (ECF Nos. 54 and 55) are GRANTED on grounds that

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Plaintiff’s state law claims against Defendants are preempted by

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the LMRA.

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to summary judgment on preemption grounds alone, it need not

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address Defendants’ alternative grounds in moving for summary

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judgment, and declines to do so.

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///

Because the Court finds that Defendants are entitled

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Despite the Court’s finding of preemption it nonetheless

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believes that Plaintiff may be entitled to bring claims premised

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on the LMRA as opposed to state law.

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Court’s February 2, 2010 Order on Plaintiff’s Motion to Remand,

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as stated above, suggested strongly that Plaintiff’s state law

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claims were indeed preempted.

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take steps to have Plaintiff’s claims dismissed on that ground

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until they filed the present motions for summary judgment and set

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those motions for hearing on the last possible day authorized by

In the present matter, the

Defendants nonetheless failed to

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the Court’s Pretrial Scheduling Order (ECF No. 21).

Moreover,

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the bench trial in this matter has already been continued to

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February 11, 2013, which in the Court’s estimation affords

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sufficient time to amend the pleadings at this juncture.

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these circumstances, and in accordance with its discretion to

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permit amendment “when justice so requires,”5 the Court will

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permit Plaintiff to file an amended complaint stating claims

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under the LMRA, should she choose to do so.6

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complaint must be filed not later than twenty (20) days following

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the date of this Memorandum and Order.

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///

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///

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///

Given

Any such amended

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See Fed. R. Civ. P. 15(a)(2); see also Nguyen v. United
States, 792 F.2d 1500, 1503 (9th Cir. 1986) (“Granting leave to
amend after summary judgment is thus allowed at the discretion of
the trial court”).
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While Defendants advanced an argument in their reply that
any such amendment may be time barred, that issue, having been
raised for the first time by way of reply, has not been fully
briefed. Nor is it even squarely before the Court in the absence
of a pending LMRA claim.
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If no amended pleading has been filed at the conclusion of said

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twenty (20) day period, the Court will enter judgment in favor of

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Defendants without further notice.

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IT IS SO ORDERED.
Dated: February 13, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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