McNaboe v. Safeway Incorporated et al

Filing 70

ORDER ON REMAINING CAUSE OF ACTION (Illston, Susan) (Filed on 1/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAURA MCNABOE,

Case No. 13-cv-04174-SI

Plaintiff,
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v.

ORDER ON REMAINING CAUSE OF
ACTION

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SAFEWAY INC., et al.,

Re: Dkt. Nos. 1, 62, 69

Defendants.

United States District Court
Northern District of California

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By order of this Court all of plaintiff’s claims against defendant Safeway have been

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dismissed with prejudice. Dkt. 1, 69. A cause of action for Unlawful Discharge and Breach of

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Union’s Duty of Fair Representation against defendant Local 5 of the United Food and

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Commercial Workers (“Union”) remains. See Dkt. 1 at 10-11; Dkt. 69 at 5-7.

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Plaintiff’s supplemental brief on this issue conceded that “it may be appropriate to

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withdraw the First Cause of Action and dismiss Union at this juncture.” Dkt. 61 at 3. And

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Union’s response to plaintiff’s supplemental brief asked this Court to sua sponte issue an order

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dismissing this remaining cause of action. See Dkt. 62 at 2. Union argued, in a single paragraph

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with no reference to the record in this case, that

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[It] aggressively represented Ms. McNaboe. It won everything after five days of
difficult arbitration. Ms. McNaboe chose not to return to work. The Union then
had to fight aggressively over back pay issues. The Arbitrator finally issued a
decision requiring Safeway to pay a specified amount. The Union fully anticipates
that Safeway will comply with that requirement. If Safeway doesn’t, the Union
will pursue that with Safeway.
Id. at 1.
To date, no party has moved or formally stipulated to dismiss Union from this case. The

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Court has found that no future amendment to plaintiff’s complaint would overcome the applicable

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six-month statute of limitations that governs a claim for breach of duty of fair representation. Dkt.
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69 at 5-7; see also 29 U.S.C. 160(b); DelCostello v. International Brotherhood of Teamsters, 462

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U.S. 151, 165-169 (1983).

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The parties are therefore ordered to meet and confer and file a joint statement no later

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than January 25, 2016 advising this Court of the appropriate resolution concerning Union’s

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involvement in this case.

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IT IS SO ORDERED.
Dated: January 14, 2016
______________________________________
SUSAN ILLSTON
United States District Judge

United States District Court
Northern District of California

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