Unpublished Disposition, 927 F.2d 608 (9th Cir. 1991)

MEMORANDUM^** 

Wayne Leroy Case appeals from the district court's entry of summary judgment in favor of The Boeing Company in this action against his former employer. We affirm the judgment and impose fees and costs against Case and his attorney for filing a frivolous appeal.

* Case first argues that his action should not have been removed to federal district court and, once there, should not have been dismissed. We disagree.

Case alleged in his complaint that Boeing's act of discharging him was "in breach of its contract of employment" with him. The only contract of employment involved here was the collective bargaining agreement between Boeing and Case's union. An employee who is covered by the terms of a collective bargaining agreement and is discharged in purported violation of that agreement may sue his employer directly for breach of contract, provided he alleges and shows that his union failed in its duty of fair representation. See UPS, Inc. v. Mitchell, 451 U.S. 56, 62 (1981) (" [T]he indispensable predicate for such an action is ... a demonstration that the Union breached its duty of fair representation"). The Labor Management Relations Act provides for federal jurisdiction over such actions. See 29 U.S.C. § 185(a). Therefore, Boeing's removal of Case's complaint from state court was proper, as it was both timely and based on a claim that could have been brought in federal district court. See 28 U.S.C. §§ 1446(b), 1441(a).

With that said, however, we note that Case neither alleged nor showed that his union failed in its duty of fair representation. See Mitchell, 451 U.S. at 62. It is equally clear that Case failed to bring this action within the requisite limitations period of six months.¹  See 29 U.S.C. § 160(b); DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169-72 (1983). Accordingly, the district court did not err by entering summary judgment in favor of Boeing on this issue.² 

II

Case's second argument is that the district court erred by refusing to remand his state employment discrimination claim following its dismissal of his federal breach of contract claim. This contention is also meritless. Because the state and federal claims arose out of a common nucleus of operative fact, see United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), discovery had been all but completed, and the case was close to trial, the district court did not abuse its discretion in retaining jurisdiction over the pendent state law claim. See Bale v. General Tel. Co. of Cal., 795 F.2d 775, 778 (9th Cir. 1986); Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir. 1983).

III

Turning to the merits of his state law claim, Case argues that he was discharged because of a handicap, viz., alcoholism, and the district court erred by entering summary judgment in favor of Boeing on this issue. This contention fails.

The evidence presented to the district court showed that (a) Case was aware of Boeing's rules governing theft of company property, falsification of time sheets, drinking alcohol on company premises, and taking unauthorized lunch breaks; (b) Case knew that the violation of any one of these rules could subject him to dismissal; (c) Case freely admitted to having knowingly violated all of these rules; and (d) Boeing explicitly fired Case for violating company rules and not for being an alcoholic. As Case failed to show anything other than that he had been discharged for cause, neither Brady v. Daily World, 105 Wash. 2d 770, 718 P.2d 785 (1986) nor Phillips v. City of Seattle, 111 Wash. 2d 903, 766 P.2d 1099 (1989), has any direct bearing on this claim. Accordingly, the district court did not err by granting summary judgment in favor of Boeing on this point, either.³ 

IV

Case finally contends that the district court erred by imposing sanctions against his counsel under Fed. R. Civ. P. 11, arguing, inter alia, that Rule 11 sanctions may not be imposed in cases removed from state court and then not without a hearing and oral argument. On the contrary, Rule 11 sanctions may be imposed for post-removal misconduct, see Hurd v. Ralphs Grocery Co., 824 F.2d 806, 809 (9th Cir. 1987), and a district court need only give notice and afford the parties an opportunity to respond in writing before imposing Rule 11 sanctions. Hudson v. Moore Business Forms, Inc., 898 F.2d 684, 686 (9th Cir. 1990). That was done here. As we find Case's remaining arguments on this issue to be equally meritless, we hold that the district court did not abuse its discretion in imposing Rule 11 sanctions. See Cooter & Gell v. Hartmarx Corp., 497 U.S. ----, ----, 110 S. Ct. 2447, 2463 (1990).

V

This appeal is utterly frivolous. Accordingly, we award Boeing its costs and attorneys' fees on this appeal, see 28 U.S.C. § 1912, Fed. R. App. P. 38, to be paid jointly and severally by Case and his attorney of record.

AFFIRMED.