Unpublished Disposition, 937 F.2d 613 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1989) Paul MARINO, Plaintiff-Appellant,v.The TERRY COMPANIES, a corporation, and Lumber and SawmillWorkers Union Local No. 2288, Defendants-Appellees

No. 90-55715.

United States Court of Appeals, Ninth Circuit.

Submitted July 8, 1991.* Decided July 11, 1991.

Before POOLE, KOZINSKI and LEAVY, Circuit Judges.


Paul Marino, formerly employed by The Terry Companies ("Terry") in its lumber sales department, appeals the district court's summary judgment in favor of Terry and the Lumber and Sawmill Workers Union Local No. 2288 ("Union") in his action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 105. Marino's complaint alleged that Union breached its duty of fair representation and that Terry breached the collective bargaining agreement by firing him. We affirm.


Marino first contends that his right to due process was violated when the district court granted, upon reconsideration, Terry and Union's motion for summary judgment and dismissed Marino's complaint after having previously denied the summary judgment motion. Marino asserts that the district court granted the motion and dismissed his complaint without notice or argument, thereby violating his right to due process.

We reject this argument. The district court reviewed questions of law which arose on the motion for summary judgment and concluded that the motions should have been granted. The motion had previously been fully presented by all parties and is now subject to de novo review. No due process right is implicated.

Marino next contends that the district court erred in granting the motion for summary judgment. Marino maintains that summary judgment was inappropriate because sufficient facts were presented in relation to the running of the applicable statute of limitation for the issue to go to a jury. We review de novo a grant of summary judgment. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339 (9th Cir. 1989).

We conclude that the district court did not err in granting the motion for summary judgment. The district court ruled that Union had failed to make a showing sufficient to establish that a genuine issue of material fact existed regarding whether Union had breached its duty of fair representation to him. The district court reasoned that because a union is not required to process grievances through an employee's counsel, Union did not breach its duty of fair representation by dropping Marino's grievance when he refused to attend the Terry-Union July 5, 1988 meeting without his counsel being present. We agree. The law is settled in this circuit that "the policy of exclusive representation generally requires that the union, rather than privately retained counsel, deal with an employer in the settlement of employee grievances." Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1484 (9th Cir. 1985). Here, Union notified Marino that he had to attend a July 5, 1988 meeting with Terry without his counsel, and that his grievance would be dropped if he did not attend the Union-Terry meeting. Thereafter, Union dropped Marino's grievance when Marino failed to comply. Union's action does not constitute a breach of its duty of fair representation to Marino. In addition, because Marino cannot prove that Union breached its duty of fair representation, the district court also properly dismissed Marino's claim that Terry breached the collective bargaining agreement. See Vaca v. Sipes, 386 U.S. 171, 186 (1967).

Marino also argues that the district court "erroneously, prejudicially, and without due process" dismissed his pendent state claims. The district court dismissed the pendent state claims in a minute order on June 12, 1989. We review a district court's decision to dismiss pendent state law claims for an abuse of discretion. Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1421 (9th Cir. 1988).

We reject Marino's contention. " [P]endent jurisdiction is a doctrine of discretion, not of plaintiff's right." United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). We have held that " [w]hen federal claims are dismissed before trial ... pendant [sic] state claims also should be dismissed." Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984). We affirm the district court's dismissal of the pendent state law claims on this ground. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987) (appellate court may affirm district court's decision on grounds other than those relied upon by the district court).

Finally, Marino asserts that the district court's actions in dismissing his complaint were an abuse of discretion, arbitrary and capricious, and were based on prejudice of the court to either Marino or his counsel. We reject these arguments. As we have noted above, the district court's summary judgment dismissal of Marino's complaint was not an abuse of the court's discretion and was consistent with governing law. Marino's contention that the district court was prejudiced against his counsel for failing to appear at the August 21, 1989 pretrial conference is entirely meritless.

Terry and Union's request for sanctions is denied.



The panel unanimously finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


We reject Terry and Union's contention that Marino's appeal should be dismissed as untimely. The December 20, 1989 statement of facts and conclusions of law dismissed the claims against both Union and Terry. The accompanying judgment, however, did not dispose of the litigation as to all claims against all parties and therefore did not comply with the provisions of Fed. R. Civ. P. 54(b)