Unpublished Disposition, 897 F.2d 534 (9th Cir. 1987)

MEMORANDUM^* 

David Vallejo sued Kaiser Aluminum & Chemical Corp. ("Kaiser") and, inadvertently, a union which did not represent him alleging state claims arising from his discharge from Kaiser and for breach of the collective bargaining agreement between Kaiser and Vallejo's union. Vallejo later dismissed the union as a defendant. The district court recharacterized Vallejo's claims as federal labor law claims and dismissed the complaint for failure to name a union defendant. Vallejo appealed and we reverse.

We conclude that we have jurisdiction to decide Vallejo's appeal. Neither the district court's order to dismiss Vallejo's complaint nor its denial of his motion for relief from the dismissal is usually a final appealable order. See Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir. 1975). In this case, however, the district court made it clear that no amendment could save Vallejo's complaint. See id. The district court entered final judgment against Vallejo and for Kaiser on September 28, 1987. Vallejo timely appealed that final judgment. We thus have jurisdiction over the appeal of the final judgment pursuant to 28 U.S.C. § 1291.

As correctly recharacterized by the district court, Vallejo's complaint against Kaiser for wrongful discharge arises under 29 U.S.C. § 185 (known as "Sec. 301") for Kaiser's alleged violation of its collective bargaining agreement with Vallejo's union, the Teamsters. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) ("when resolution of a state-law claim is substantially dependent upon analysis of ... a labor contract, that claim must ... be treated as a Sec. 301 claim...."). An "indispensable predicate" for Vallejo's suit against Kaiser under Sec. 301 is a showing that his union unfairly represented him during contractual remedies for his grievance. Christianson v. Pioneer Sand & Gravel Co., 681 F.2d 577, 579-80 (9th Cir. 1982) (citations omitted).

The district court seemed to hold in its April dismissal Order that Vallejo's complaint was insufficient to sustain a Sec. 301 action against Kaiser because Vallejo failed "to make a claim against the union...." Order at 9 (emphasis added). Dispositive for the district court was the fact that Vallejo had dismissed all unions as defendants from his complaint. Id. at 8-9. In a closely analogous case, however, where an employee had similarly dismissed all unions as defendants, this court concluded that "an employee may sue his employer without joining the union as a defendant." Christianson, 681 F.2d at 580. Thus, though Vallejo "must establish the union's breach of duty [of fair representation], he may do so in his Sec. 301 suit against the employer." Id.

Vallejo did allege in his complaint that his union initially refused to process his grievance at all, and that when the union did bring his grievance, it did so only after delay and without adequate investigation. We therefore conclude that Vallejo satisfied the "indispensable predicate" of alleging his union's unfair representation. In this case where we must construe Vallejo's allegations in a light most favorable to him, it does not appear "beyond doubt" that Vallejo could not prove that his union's delay and failure to investigate his defense prejudiced the outcome of his grievance. See Love v. United States, 871 F.2d 1488, 1491 (9th Cir. 1989) (explaining standard of review for dismissal of complaint).

We note that Vallejo named the wrong union as a defendant; and next, after he had dismissed the wrongly-named union, he failed to amend his complaint to clarify that he alleged unfair representation by the Teamsters. On the other hand, even in his uncorrected complaint, Vallejo plainly alleged unfair representation by some union, identified appropriately at one point as the Teamsters. Vallejo therefore gave Kaiser notice of his claims as required under Rule 8(a) (2). Moreover, Kaiser has nowhere complained of prejudice to its defense by Vallejo's failure to correct and clarify his complaint. This court has previously permitted plaintiffs to proceed even where, unlike here, plaintiffs had failed to name a necessary defendant in their complaint. See Yeseta v. Baima, 837 F.2d 380, 383 (9th Cir. 1988). Vallejo's case, then, may have justified dismissal, but only with leave to amend to identify his union correctly.

Contrary to the purpose of Rule 60(b), Vallejo moved for relief from dismissal of his complaint on the grounds that the district court erred as a matter of law in deciding Sec. 301 requires him to sue his union and in denying him leave to amend his complaint.¹  See McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir. 1987). Because Vallejo did not amend his complaint to sue his union, the court denied his motion for relief. We have addressed this legal issue, improperly a subject of a Rule 60(b) motion, in our discussion of the sufficiency of Vallejo's complaint.

We note too that the district court emphasized in denying Vallejo relief from dismissal that Vallejo had failed to amend his complaint to cure pleading deficiencies despite ample opportunity. The court further stated that "No justification has been offered for the failure to seek leave to amend, and at this point the failure to seek amendment has lapsed into the realm of inexcusable neglect." Order at 2. Because we disagree with the district court about what amendments were required, we cannot affirm the district court's appraisal that Vallejo inexcusably neglected to amend his complaint to allege a prima facie Sec. 301 claim.

The judgment of the district court is therefore REVERSED, and the case is REMANDED for further proceedings not inconsistent with this decision.