ORDER GRANTING SCREEN ACTORS GUILD'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT

STEPHEN WILSON, District Judge

I. INTRODUCTION PROCEDURAL HISTORY

On March 31, 2004, Plaintiff William Masters II ("Masters") and the Extra Performers of the Screen Actors Guild, proceeding pro se, filed suit against Defendants Alliance of Motion Picture and Television Producers ("AMPTP"), a multi-employer bargaining unit, and Screen Actors Guild ("SAG"), a labor organization.

In his Complaint, Masters sets forth eleven "charges." In Charge 1, Masters alleges that SAG breached its duty of fair representation under the Labor Management Reporting and Disclosure Act ("LMRDA") by entering into an illegal bargaining agreement with the AMPTP.

In Charge 2, Masters alleges that SAG's refuses to formally accept him as a member even though he has met all of the requirements set forth in SAG's Constitution and Bylaws in violation of 29 U.S.C. §§ 141(b), 157, 159(a), 411(a)(1), 411(a)(2), and 481(a).

In Charge 3, Masters alleges that SAG denies some members their rights to participate in the affairs of SAG on the grounds that they do not support or participate in the political or ideological activities of SAG in violation of 29 U.S.C. §§ 157, 141(b), 159(a), 411(a)(1), 411(a)(2), and the First Amendment.

In Charge 4, Masters alleges that SAG denies some members their rights to equal participation in the labor organization on the grounds that they refuse to stop associating with Non-Signatory employers in violation of 29 U.S.C. §§ 158(b)(2), 159(a), 411(a)(1), 481(e), and the First Amendment.

In Charge 5, Masters alleges that SAG uses its personnel and facilities to collect money and perform administrative activities for political and ideological activities and organizations in violation of 29 U.S.C. §§ 157, 501(a), and the First Amendment.

In Charge 6, Masters alleges that SAG has no meetings for its members to discuss the business of the labor organization in violation of 29 U.S.C. §§ 411(a)(1), 411(a)(2), and 481(e).

In Charge 7, Masters alleges that SAG defers all elections of the labor organization to the labor union that the majority of the employees belong to in violation of 29 U.S.C. §§ 411(a)(1), 411(a)(2), 481(a)(b)(d)(e), and the First Amendment.

In Charge 8, Masters alleges that SAG's officers serve as both officers of the labor union and the labor organization, creating a conflict of interest to the detriment of the labor organization and its members in violation of 29 U.S.C. § 501(a).

In Charge 9, Masters alleges that SAG refuses to inform its members of their rights and responsibilities under LMRDA in violation of 29 U.S.C. § 415.

In Charge 10, Masters alleges that SAG collects dues and fees in excess of those allowed by law in violation of 29 U.S.C. § 157 and 18 U.S.C. § 1951.

In Charge 11, Masters alleges that various Rules and Regulations of SAG are used to illegally deny members their participatory rights in the labor organization.

On May 28, 2004, SAG filed its Notice of Screen Actor's Guild Motion to Dismiss.

On June 2, 2004, AMPTP filed its Notice of Motion and Motion of Defendant Alliance of Motion Picture and Television Producers' Motion to Dismiss.

On August 19, 2004, this Court issued its Order Granting Defendant Alliance of Motion Picture and Television Producers' Motion to Dismiss. The Order found that Charge 1 was preempted by the National Labor Relations Board's exclusive primary jurisdiction over unfair labor practice claims and bargaining unit determinations. Thus, although the Court denied SAG's Motion to Dismiss, Charge 1 was dismissed with respect to SAG as well.

On October 12, 2004, SAG filed Notice of Screen Actor's Guild Motion for Summary Judgment or Partial Summary Judgment.

On October 25, 2004, Masters filed Plaintiff's Response to Defendant SAG's Motion for Summary Judgment.

On November 5, 2004, SAG filed Screen Actor's Guild Reply Memorandum of Points and Authorities in Support of Motion for Summary Judgment.

II. FACTS

Article III of SAG's Constitution and Bylaws sets forth the eligibility requirements for membership in SAG. Section 1 provides that "performers" and "background actors," as those terms are defined in Section 1, are eligible for membership in SAG. (Gottlieb Decl. ¶ 4, Ex. E.) Section 3 provides, however, that "[o]nly members in good standing and not in arrears of dues are entitled to any of the rights, privileges, and prerogatives of membership." (Gottlieb Decl. ¶ 4, Ex. E.)

According to John McGuire, a Senior Adviser to the Guild who was SAG's Associate National Executive Director for approximately 20 years and its Chief Executive Officer from January through September 2001, SAG "has traditionally and uniformly required that all of its members pay dues that include payment for its costs for both representational and non-representational union activities." (McGuire Decl. ¶ 2.) McGuire states, however, that SAG "recognizes that some performers may not wish to pay their share of the costs of [SAG's] political activities. . . . [but that] it is now and has always been [SAG's] policy and practice not to permit performers who object to and refuse to make such payment to enjoy the privileges of membership." (McGuire Decl. ¶ 2.)

Masters has paid no dues of any kind to SAG. He has refused to pay the share of membership dues that would pay for SAG's non-representational costs and activities. And he has not paid any sum to SAG to defray its costs of representing him.

In a December 21, 1999 letter, Leo Geffner of Geffner Bush, SAG's counsel, informed Masters that

[SAG] has decided not to accept you as a financial core non-member or fee payor. Since you are not accepted as a fee payor, there is no obligation on your part to pay initiation fees, dues or fees of any kind to [SAG]. [SAG] will not in any matter require any financial obligations on your part to [SAG] under the union security provisions of [SAG's] agreement as a condition of employment.

As to any employment by you under the terms and conditions of the [SAG] agreements, [SAG] will represent you in all matters that are appropriate as applies to its duty of fair representation.

For the above reasons, [SAG] is canceling your appointment at [SAG] on January 3, 2000.

(Complaint ¶ 3, Ex. 3.)

In 1993 and again in 1995, Masters filed several charges against SAG with the National Labor Relations Board ("NLRB"). On June 14, 1993, Masters filed a charge with the NLRB alleging that SAG violated the National Labor Relations Act ("NLRA") by "requiring employees who are covered by a collective bargaining agreement . . . to pay, as a condition precedent to becoming a member of said labor organization, a fee that is excessive in amount, in violation of section 8(B)(1)(A), (2) and (5) of the Act." (Gottlieb Decl. ¶ 3, Ex. A.) On July 29, 1993, the Region 31 Regional Director of the NLRB dismissed Master's complaint. (Gottlieb Decl. ¶ 3, Ex. A.) On September 24, 1993, the General Counsel of the NLRB denied Master's appeal of the dismissal. (Gottlieb Decl. ¶ 3, Ex. A.)

On June 21, 1993, Masters filed another charge with the NLRB alleging that SAG violated the NLRA by 1) failing to disclose to members the nature of their rights to refrain from engaging in activities protected by the NLRA, 2) failing to disclose to members the nature of their financial obligations to SAG, 3) misleading members about their rights under the NLRA, and 4) establishing policies and practices regarding dues and fees owed by members that violate Communication Workers of America v. Beck, 487 U.S. 735 (1988). (Gottlieb Decl. ¶ 3. Ex. B.) On August 9, 1993, the Region 31 Director of the NLRB dismissed Master's complaint. (Gottlieb Decl. ¶ 3. Ex. B.) On September 13, 1993, the Acting Associate General Counsel of the NLRB denied Master's appeal of the dismissal. (Gottlieb Decl. ¶ 3. Ex. B.)

On June 8, 1995, Masters filed another charge with the NLRB alleging that SAG violated the NLRA by 1) "requir[ing] individuals to pay initial fees and join the union before they can obtain `financial core' status." 2) "not allow[ing] individuals, if after they pay their initiation fees and become members and then obtain `financial core' status, to retain their SAG membership card," and 3) "requir[ing] financial core members to pay more in dues than the financial core due, an amount that increases with members' income. . . ." (Gottlieb Decl. ¶ 3. Ex. C.) On June 23, 1995, Masters withdrew the charge. (Gottlieb Decl. ¶ 3. Ex. C.)

III. DISCUSSION

SAG moves for summary judgment with respect to all remaining charges. First, SAG argues that Charges 2 through 9 and 11 fail as a matter of law because 1) this Court lacks jurisdiction to entertain LMRDA claims brought by non-members of the union and 2) the claims would be time-barred by the one-year statute of limitations under LMRDA even if Masters had standing to assert them. Second, SAG argues that Masters' duty of fair representation ("DFR") claims fail as a matter of law because 1) they relate to the purely internal affairs of SAG and 2) are time-barred by the applicable six-month statute of limitations. Third, SAG argues that Masters' First Amendment claims fail as a matter of law because SAG is not a state actor. Fourth, SAG argues that Charge 10 fails as a matter of law because a claim of excessive dues is within the exclusive primary jurisdiction of the NLRB. Fifth, SAG argues that Charge 9 fails as a matter of law because Masters did not exhaust his intra-union remedies. Finally, although SAG does not make this argument, the Court concludes that Charge 8 fails as a matter of law because claims under § 501 of LMRDA may not be brought against a labor union.

A. LMRDA Claims

Charges 2, 3, 4, 5, 6, 7, 8, 9, and 11 of Masters' Complaint allege violations of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531. In particular, Charges 2, 3, 4, 6, and 7 allege violations of § 101(a)(1) and (a)(2) of LMRDA, 29 U.S.C. § 411(a)(1)-(2). SAG contends that this Court lacks jurisdiction to hear Masters' LMRDA claims because, as a non-member, he lacks standing to assert such claims. Alternatively, SAG argues that, even if this Court has jurisdiction, Masters' LMRDA claims are time-barred under the applicable statute of limitations.

1. Standing/Jurisdiction

SAG contends that this Court lacks jurisdiction to entertain Masters' LMRDA claims because non-members do not have standing to bring LMRDA claims. Masters does not dispute this but argues that he is a member as that term is defined by LMRDA.

Title 1 of LMRDA, 29 U.S.C. §§ 411-415, provides that "every member of a labor organization" shall have, among other rights, the right to vote in elections and referenda, to assemble and speak freely, to bring suit against the union, and to be afforded various procedural safeguards prior to disciplinary action. § 411(a)(1), (a)(2), (a)(4), and (a)(5). However, these rights "accrue only to `members' or `members in good standing' of unions." Basilicato v. Int'l Alliance of Theatrical Stage Employees and Moving Picture Mach. Operators of U.S. Can., 479 F. Supp. 1232, 1235 (D. Conn. 1979). Moreover, although § 102 of LMRDA creates federal jurisdiction over claims that a union has violated Title I, it provides that only a "person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States. . . ." § 412. Thus, since the rights secured by Title I accrue only "members" or "members in good standing," only a "member" or "member in good standing" has standing to sue under § 102.

Section 3(o) of LMRDA defines a "member" or "member in good standing" of a labor organization as "any person who has fulfilled the requirements of membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization." § 402(o). The Ninth Circuit has explained that, under this definition, a "member" is

not limited to those persons who are recognized as members by the union. The Act provides rights to those persons who have fulfilled the requirements of membership, i.e., those who are members in substance despite the fact that union officials have not performed the ministerial acts necessary to give formal recognition to a person's status as a member.

The process by which a court makes this determination was succinctly and clearly laid out by the court in Napolitano v. International Union of Operating Engineers Local No. 4, 872 F. Supp. 1085, 1088 (D. Mass. 1994):

[T]he [analysis of whether a person is a member of the union for purposes of § 3(o)] . . . require[s] the court, in ruling on a motion for summary judgment by a labor organization, to determine whether there [is] a genuine issue of material fact as to whether the person asserting LMRDA rights had "fulfilled the requirements for membership." This, in turn, . . . require[s] the court to consider the labor organization's governing instruments — presumably its constitution or bylaws — to ascertain the requirements for membership. Then . . . if there [is] a genuine dispute regarding whether the putative member had met those requirements, the motion for summary judgment would properly be denied and the matter would proceed to trial.

It is essential in this process that a court look to the union's own policies and practices in determining what the union's requirements for membership are. The "LMRDA does not prescribe requirements for membership but instead recognizes the right of unions to choose their own members." Basilicato, 479 F. Supp. at 1235. See also Brennan, 709 F.2d at 614 ("The legislative history of the [LMRDA] supports the proposition that the [LMRDA] was not drafted with the intent to dictate the requirements established by a labor organization respecting membership."). Thus, a court must look to the union's constitution and bylaws, as well as its own practices, in determining whether the plaintiff fulfilled the requirements for membership.

In the instant case, these requirements are clear. Article III, Section 3 of SAG's Constitution and Bylaws provides that "[o]nly members in good standing and not in arrears of dues are entitled to any of the rights, privileges, and prerogatives of membership." Thus, a member who is in arrears of dues is not entitled to the rights, privileges, and prerogatives of SAG membership. Moreover, SAG requires as a condition of membership that members pay a fee that covers both SAG's representational activities and its non-representational activities. Individuals who decline to pay the portion of the fee that covers SAG's non-representational are not accorded membership status; rather, they are treated as financial core non-members or fee payors.

Masters has never paid any dues whatsoever to SAG. Thus, under Section 3 of Article III, Masters is not entitled to the rights, privileges, and prerogatives of SAG membership. Consequently, he is not a member of SAG for purposes of § 3(o). Moreover, even if Masters had paid (as he claims he was willing to do) the fee payor or financial core non-member portion of the dues that goes only to SAG's representational activities, he still would not qualify as a member of SAG for purposes of § 3(o) because SAG requires, as a condition of membership, that members pay the portion of the fee that covers SAG's non-representational activities. Thus, since Masters has never attempted to pay and indeed refused to pay that portion of the fee, he was never a member of SAG for purposes of § 3(o).

Masters argues in response that he was and still is a member of SAG because 1) he submitted to SAG's membership department three pay vouchers showing employment under contract for three continuous days, 2) SAG refused to accept his payments, 3) SAG eventually relieved him of the obligation to pay any dues whatsoever, and 4) even if his membership was "canceled", he would still be a member for purposes of § 3(o) unless he had been expelled from membership "after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization," which he wasn't.

Masters' arguments that he was and still is a member of SAG fail to raise any genuine issues of fact. First, Article III, Section 3 of the SAG Constitution and By-Laws simply provides that "performers" and "background actors" are eligible for membership in SAG. Thus, the mere fact that Masters may have been eligible for membership by virtue of three-days of contract work does not, ipso facto, establish that he in fact fulfilled the requirements for membership. Second, Masters provides no declaration or documentation to support his claim that he tried to make payments but that SAG refused his payments. Third, the December 21, 1999 letter indicates that SAG relieved Masters of the obligation to pay union dues or fees only to the extent that it denied him status as a financial core non-member or fee payor. The December 21, 1999 letter states that "[SAG] has decided not to accept you as a financial core non-member or fee payor. Since you are not accepted as a fee payor, there is no obligation on your part to pay initiation fees, dues or fees of any kind to [SAG]." Thus, the December 21, 1999 letter says only that, given SAG's rejection of Masters as a financial core non-member, Masters is not required to pay the financial core portion of the dues. By no stretch of the imagination can the letter be read as offering Masters the rights, privileges, and benefits of full membership while simultaneously relieving him of the obligation to pay any dues whatsoever. Fourth, Masters is incorrect when he claims that he is still a member for purposes of § 3(o) because he was not expelled pursuant to "appropriate procedures." First, it is not clear that the December 21, 1999 letter can be read as terminating Master's membership. Rather, the letter states that SAG will be "canceling [Master's] appointment." Although the term "appointment" is ambiguous, Masters has provided no evidence of any kind to support the argument that appointment is the same or equivalent to membership. Moreover, such a reading would be inconsistent with Masters' Complaint since Charge 2 alleges that SAG refused to formally accept him as a member. Second, even assuming that Masters' membership was canceled, there is no requirement under LMRDA that a member must be afforded a full hearing before being expelled or suspended for nonpayment of dues. The Seventh Circuit has indicated that the phrase "appropriate proceedings" in § 3(o) is "an apparent reference to 29 U.S.C. § 411(a)(5)." Alvey, 622 F.2d at 1284 n. 5. 29 U.S.C. § 411(a)(5) provides that

[n]o members of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full hearing.

Thus, since Masters has failed to produce any admissible evidence that would allow a reasonable trier of fact to find that he was or remains a member of SAG for purposes of § 3(o) of LMRDA, this Court has no choice but to conclude that he was never a member.

Consequently, Masters lacks standing to raise LMRDA claims, and this Court therefore lacks jurisdiction to hear Master's LMRDA claims.

2. Statute of Limitations

SAG argues that, even if Masters had standing, his LMRDA claims would be barred by the applicable statute of limitations. InReed v. United Transportation Union, 488 U.S. 319 (1989), the Supreme Court held that claims under § 102(a)(2) of LMRDA are governed by state general or residual personal injury states. The Court reached this conclusion because § 102(a)(2), which protects the free speech rights of union members, "has evident similarities to § 1983." Id. at 327. By this reasoning, § 102(a)(1) of LMRDA, which protects a union member's equal right to vote and participate, is also analogous to a § 1983 claim and therefore governed by the applicable state general or residual personal injury statute. See, e.g., George v. Local Union No. 639, Int'l Bhd. of Teamsters, Chauffers, Warehousemen Helpers of Am., ALF-CIO, 100 F.3d 1008, 1913 (D.C. Cir. 1996) ("We believe that Reed compels the conclusion that claims under section 101(a)(1) are governed by the borrowed statute of limitations of state law. . . . Although the holding in Reed was addressed to section 101(a)(2) claims, we can find no reasonable way to distinguish section 101(a)(1) claims from the section 101(a)(2) claims considered in Reed."); Marshall v. Local Union No. 6 Brewers Maltsters Gen. Labor Dep't, 960 F.2d 1360, 1365-67 (8th Cir. 1992) (holding that a section 101(a)(1) claim was governed by the applicable statute of limitations for personal injury actions); Algood v. Elyria United Methodist Home, 904 F.2d 373, 378 (6th Cir. 1990) ("In light of the Supreme Court's decision in Reed, we . . . find that section 101(a)(1) claims are more appropriately governed by the state residual personal injury statute of limitations"); Clift v. Int'l Union, United Auto., Aerospace Agric. Implement Workers of Am. (UAW), 881 F.2d 408, 411 (7th Cir. 1989) ("[A] state's limitations period for a personal injury action . . . provides the appropriate borrowed limitations period for an employee's equal protection claim under Section 101(a)(1) of the LMRDA."). Thus, Masters' § 101(a)(1) and (a)(2) claims are governed by California's statute of limitations for personal injury actions.

The statute of limitations for personal injury actions under California law is two years. Cal. Civ. Proc. Code § 335.1. However, the two-year limitations period did not become effective until January 1, 2003. Maldonado v. Harris, 370 F.3d 945, 995 (9th Cir. 2004). Prior to the enactment of § 335.1, the limitations period for personal injury actions under California law was one year. Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001) (citing Cal. Civ. Proc. Code § 340(3)). Thus, if Masters' claim was barred under the one-year limitations period by the time the two-year limitations period became effective on January 1, 2003, then the two-year limitations period would not apply. However, if Masters' claim was still viable as of January 1, 2003, then the two-year limitations period would apply. See, e.g., Lamke v. Sunstate Equip. Co., 2004 WL 2125869, at *7 (N.D. Cal. Sept. 22, 2004) (explaining that, under California law, "`the extension of the statutory period within which an action must be brought . . . is generally held to be valid if made before the cause of action is barred.'" (quoting Douglas Aircraft Co. v. Cranston, 58 Cal. 2d 462, 465 (1962)).

The key issue, then, is when Masters' § 101(a)(1) and (a)(2) claims accrued. "Under federal law, the touchstone for determining the commencement of the limitations period is notice: `a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action.'" Hoesterey v. City of Cathedral City, 945 F.2d 317, 318-19 (9th Cir. 1991) (quoting Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981)). Because Masters' various charges relate to arguably distinct injuries, it is necessary to review each one to determine whether it is barred by the statute of limitations.

a. Charge 2

In Charge 2, Masters alleges that SAG refused to formally accept him as a member, denying him all participatory and voting rights, even though he met the requirements set out in SAG's Constitution and By-Laws. Absent any equitable tolling, Masters' claim is barred by California's statute of limitations by either 1) the fact that Masters filed a similar charge with the NLRB in June 1995 or 2) the fact that Masters was notified of SAG's decision to deny him fee payor or financial core non-member status in December 1999 when he received the December 21, 1999 letter.

On June 8, 1995, Masters filed a charge with the NLRB alleging that SAG violated the NLRA by 1) "requir[ing] individuals to pay initial fees and join the union before they can obtain `financial core' status," 2) "not allow[ing] individuals, if after they pay their initiation fees and become members and then obtain `financial core' status, to retain their SAG membership card," and 3) "requir[ing] financial core members to pay more in dues than the financial core due, an amount that increases with members' income. . . ." (Gottlieb Decl. ¶ 3. Ex. C.) Although this charge is not identical to Charge 2, it is similar because Masters charges that SAG denied union membership, with all its privileges, to financial core non-members. Thus, Masters knew or at least had reason to know of the injury which forms the basis of Charge 2 by 1995 at the earliest.

However, Charge 2 is barred by an event more recent event. In December 1999, Masters received notification of SAG's decision to refuse to accept him as a fee payor or financial core non-member. Implicit in this denial was a denial of full membership since the issue of Master' status as a financial core non-member would not have arisen if he had been accepted as a full member. Thus, Masters knew or at least had reason to know of the injury which forms the basis of Charge 2 (denial of membership and its concomitant privileges) by 1999 at the latest. Consequently, Charge 2 is barred under California's statute of limitations.

b. Charge 3

In Charge 3, Masters alleges that SAG denies some members their right to participate in the affairs of SAG on the grounds that they do not support or participate in the political or ideological activities of SAG. Because Charge 3 relates to SAG's alleged denial of participatory rights to non-members who, like Masters, object to SAG's political and ideological activities, Charge 3 alleges an injury (denial of the participatory rights of alleged members) that is almost indistinguishable from the injury alleged in Charge 2 (denial of membership and its concomitant privileges). Thus, Charge 3 is barred under California's statute of limitations since Masters had to have known of the denial of participatory rights in 1995 when he charged SAG with denying membership status to financial core non-members. Alternatively, Masters had to have known of the denial of these rights in 1999 when he was notified of SAG's decision to deny him financial core non-member status. Either way, Charge 3 is time-barred.

c. Charge 4

In Charge 4, Masters alleges that SAG denies some members their rights to equal participation in the union on the grounds that they refuse to stop associating with Non-Signatory employers. Because none of the charges Masters filed with the NLRB expressly relate to the injury alleged in Charge 4, they cannot supply a date of accrual for this claim. Nor is there anything else in the record that could provide an approximate date of accrual for this claim. Thus, SAG has not established that Charge 4 is barred by California's statute of limitations. However, since Masters is not a member of SAG, he lacks standing to bring a claim for alleged violations of § 101(a) (1).

d. Charge 6

In Charge 6, Masters alleges that SAG had no meetings for its membership to discuss the business of the union. Because none of the charges Masters filed with the NLRB expressly relate to the injury alleged in Charge 6 (the lack or absence of meetings), they cannot supply a date of accrual for this claim. Nor is there anything else in the record that could provide an approximate date of accrual for this claim. Thus, SAG has not established that Charge 6 is barred by California's statute of limitations. However, since Masters is not a member of SAG, he lacks standing to bring a claim for alleged violations of § 101(a)(1) and (a) (2). Moreover, neither § 101 (a) (1) or (a) (2) imposes a requirement that the union hold meetings. Thus, Charge 6 does not even state a viable cause of action under LMRDA.

e. Charge 7

In Charge 7, Masters alleges that SAG limits participation in SAG elections to SAG members. Since participation in SAG elections is a privilege of SAG membership, Charge 7 is similar to Charges 2 and 3 in that it alleges a denial of one of the privileges of membership to non-members. Thus, the 1995 charge is relevant here. In making the charge in 1995 that SAG was denying membership to fee payors or financial core non-members, Masters knew or had reason to know that SAG was denying the privileges of membership to these individuals. Thus, Charge 7, like Charges 2 and 3, is barred by California's statute of limitations. However, even leaving aside the statute of limitations issue, Charge 7 states no cause of action under LMRDA because neither § 101 (a) (1) nor (a) (2) imposes a requirement that unions hold elections.

f. Charge 9

In Charge 9, Masters alleges that SAG refuses to inform its members of their rights and responsibilities under LMRDA in violation of 29 U.S.C. § 415. Section 105 of LMRDA provides that "[e]very labor organization shall inform its members concerning the provisions of [Title I]." § 415. Because § 105 is part of Title I, an argument could be made that, like § 105 (a) (1) and (a) (2), it is governed by the applicable state general or residual personal injury statute. However, it is by no means clear that this is the case. While § 101 (a) (1) and (a) (2) protect rights analogous to those protected by § 1983, § 105 does not. Thus, the applicability of state general or residual personal injury statutes of limitation is arguable. However, since Masters lacks standing under Title I of LMRDA to bring this claim, the issue of which statute of limitations applies need not be resolved. Moreover, as discussed in greater detail below, Masters failed to exhaust his intra-union remedies pursuant to 29 U.S.C. § 411 (a) (4). Thus, the Court has discretion to dismiss his § 415 claim on this basis as well.

g. Charge 11

In Charge 11, Masters alleges that various Rules and Regulations of SAG are used to illegally deny members their participatory rights. Masters does not specify which law SAG's conduct violates, but his claim would seem to allege a violation of § 101 (a) (1). Consequently, California's statute of limitations for personal injuries applies.

Like Charge 3, Charge 11 alleges a denial of members' participatory rights. Therefore, as with Charge 3, the 1995 charge with the NLRB is relevant. In making the charge in 1995 that SAG was denying membership to fee payors or financial core non-members, Masters knew or had reason to know that SAG was denying the privileges of membership to these individuals. Thus, Charge 11, like Charges 3, is barred by California's statute of limitations.

3. Equitably Tolling the Statute of Limitations

In certain instances, a plaintiff may equitably toll the statute of limitations. The plaintiff, however, bears the burden of demonstrating that equitable principles should apply to toll the statute of limitations. See Vaughn v. Teledyne, 628 F.2d 1214, 1218 (9th Cir. 1980). The doctrine of continuing violations is an equitable doctrine that allows a plaintiff to toll the statute of limitations when the defendant engages in an ongoing set of illicit acts. O'Loghlin v. County of Orange, 229 F.3d 871, 875 (9th Cir. 2000); Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1332 (9th Cir. 1996). In these circumstances, the statute of limitations does not begin to run until the date of the last illegal act. O'Loghlin, 229 F.3d at 875; Pisciotta, 91 F.3d at 1332; In re State Police Litig., 888 F.Supp. 1235, 1250 n. 15 (D. Conn. 1995). The purpose of the continuing violations doctrine is to "prevent a defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the same sort." O'Loghlin, 229 F.3d at 875.

Masters claims that he is entitled to toll his claim because of the continuing violation doctrine. SAG disputes the applicability of this doctrine to Masters' claims, arguing that there is nothing new or different about what he is alleging now in comparison to what he alleged several years ago before the NLRB. While this might be the case, the continuing violations doctrine is applicable when a defendant engages in an ongoing set of illicit acts, even if those acts are similar. Thus, if Masters' rights had been repeatedly denied by SAG, then SAG would have engaged in an ongoing set of illicit acts sufficient to satisfy the requirements of the continuing violation doctrine. However, Masters has the burden of establishing that there was a continuing violation of his rights and he has set forth no evidence that there was an ongoing violation of his rights, let alone when these violations occurred. Moreover, even if his claim is tolled until December 1999, when he received notice from SAG that he was being denied status as a fee payor or financial core non-member, his claim would be barred under the applicable statute of limitations.

Masters' second argument for tolling the statute of limitations is "color of threat." See, e.g., Govan v. Trs. of Boston Univ., 66 F. Supp. 2d 74, 81-2 (D. Mass. 1999) (rejecting plaintiff's argument that the statute of limitations should be tolled due to defendant's "veiled threats"). Masters claims that SAG created an atmosphere of fear which inhibited him from filing causes of actions with the court. SAG disputes the viability of this theory, noting that Masters filed claims with the NLRB in the past. Since Masters did in fact file at least three claims with the NLRB in the past, Masters' "color of threat" argument fails to provide a valid justification for tolling the statute of limitations.

B. DFR Claims

The duty of fair representation recognized under the NLRA "arises `from the grant under § 9(a) of the NLRA, 29 U.S.C. § 159(a), of the union's exclusive power to represent all employees in a particular bargaining unit." Simo v. Union of Needletrades, Indus. Textile Employees, 322 F.3d 602, 610-11 (9th Cir. 2003) (quoting Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 86-87 (1989)). "As the exclusive bargaining representative of the workers, the union has `"a duty to exercise [its] power in their interest and behalf."Simo, 322 F.3d at 611 (quoting Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 74 (1991) (quoting Steele v. Louisville Nashville R.R. Co., 323 U.S. 192, 202 (1944))). "To establish a breach of a union's duty of fair representation, an employee must show that the union's conduct was `arbitrary, discriminatory, or in bad faith.'" Galindo v. Stoody Co., 793 F.2d 1502, 1513 (9th Cir. 1986) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

1. Internal Affairs

The Ninth Circuit has held that "the duty of fair representation does not apply where the union is not representing the workers in question." Simo, 32 F.3d at 614. In Simo, the employees of Sorrento Coats, Inc. ("Sorrento") told the Union of Needletrades, Industrial and Textile Employees Southwest District Council ("UNITE-SW") and the Union of Needletrades, Industrial and Textile Employees, ALF-CIO ("UNITE") (collectively "the union") that it was withdrawing recognition of the union and would not implement an extension of the collective bargaining agreement ("CBA") it had agreed to earlier that year. Id. at 607. Two days later, the union requested that M. Shapiro Co. ("Shapiro"), a jobber that provided Sorrento with most of its work, stop sending work to Sorrento. Id. Shapiro complied. Id. The Sorrento employees filed suit, alleging that the union had breached its DFR by pressuring Shapiro to withdraw work from Sorrento. Id. at 609. On appeal, the Ninth Circuit held that the union did not breach its DFR because the union was not acting in its representative capacity when it sought to deprive Sorrento of work. Id. at 614.

Except for Charge 1, which the Court previously dismissed, none of Master's claims relates to SAG's representational activities. Instead, all of the remaining charges deal with SAG's relations with its own members or alleged members. Since these charges relate to purely internal matters that do not involve SAG's activities in representing its members, they fail to state a DFR claim under Simo.

2. Statute of Limitations

DFR claims are governed by the six-month statute of limitations of § 10(b) of the NLRA. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 172 (1983). "[T]he six-month period generally begins to run when an employee knows or should know of the alleged breach of duty of fair representation by a union."Galindo, 793 F.2d at 1509. However, "[t]his general rule . . . is not consistently applied." Id. A court must focus on the precise context in which the claim arose. Id. Here, however, there are no thorny issues of accrual because Masters filed charges with the NLRB on June 21, 1993 alleging that SAG violated the NLRA by 1) failing to disclose to members the nature of their rights to refrain from engaging in activities protected by the NLRA, 2) failing to disclose to members the nature of their financial obligations to SAG, 3) misleading members about their rights under the NLRA, and 4) establishing policies and practices regarding dues and fees owed by members that violateCommunication Workers of America v. Beck, 487 U.S. 735 (1988). (Gottlieb Decl. ¶ 3. Ex. B.) These charges are virtually identical to some of the charges in Masters' Complaint, particularly Charges 3 and 9. Thus, to the extent that any of the charges in Masters' Complaint, but particularly Charges 3 and 9, articulate claims similar or virtually identical with those set forth in the June 21, 1993 charge with the NLRB, they are barred by the six-month statute of limitations.

C. First Amendment Claims

Charges 3 through 7 allege violations of Masters' First Amendment rights by SAG. However, to raise a First Amendment claim against a private entity, a plaintiff must show state action on the part of the private entity. Jackson v. Metro. Edison Co., 419 U.S. 345, 358-59 (1974). Masters has failed to show that SAG is a state actor.

State action will be found only if there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State.Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295 (2001). However, "[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity." Id. The Ninth Circuit has utilized several tests to determine whether a private actor has engaged in state action. In Brunette v. Humane Society of Ventura County, 294 F.3d 1205, 1210 (9th Cir. 2002), for instance, the court identified three tests: 1) the "joint action" test, 2) the "symbiotic relationship" test, and the "public function" test.

The "joint action" test looks at whether private actors are willful participants in joint action with the government or its agents. Id. The "symbiotic relationship" test asks "whether the government has so far insinuated itself into a position of interdependence with a private entity that the private entity must be recognized as a joint participant in the challenged activity." Id. The "public function" tests examines "whether the private actor performs functions traditionally and exclusively reserved for the States." Id.

"Labor unions generally are not state actors," Marrero v. City of New York, 2003 WL 1621921, at *4 (S.D.N.Y. March 28, 2003), and this case is no exception. SAG is not performing a function traditionally and exclusively reserved for the States. No governmental unit has insinuated itself into a position of interdependence with SAG such that SAG is a joint participant in the governmental activity. Nor is SAG a willful participant in joint action with the government or its agents. Thus, since there is no evidence that SAG is a state actor, Masters' First Amendment claims must fail.

D. Preemption

In Charge 10, Masters alleges that SAG collects dues and fees in excess of those allowed by law in violation of 29 U.S.C. § 157 and 18 U.S.C. § 1951. SAG argues that Charge 10 fails as a matter of law for want of jurisdiction. When a plaintiff challenges an action that is arguably subject to § 7 of the NLRA, the challenge is within the primary jurisdiction of the NLRB. Marquez v. Screen Actors Guild, 522 U.S. 33, 49 (1998). In Charge 10, Masters alleges that SAG violated § 7 of the NLRA by charging excessive dues. Section 8(b)(5) of the NLRA provides that "[i]t shall be an unfair labor practice for a labor organization or its agents to require of employees . . . the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances." § 158(b)(5). Thus, by its very terms, Section 8(5)(b) commits to the NLRB the determination of whether a fee is excessive. Indeed, on June 14, 1993, Masters filed a charge with the NLRB alleging that SAG violated the NLRA by "requiring employees who are covered by a collective bargaining agreement . . . to pay, as a condition precedent to becoming a member of said labor organization, a fee that is excessive in amount, in violation of section 8(B)(1)(A), (2) and (5) of the Act." (Gottlieb Decl. ¶ 3, Ex. A.) Thus, since an excessive fee claim is arguably subject to § 7 of the NLRA, it is within the primary jurisdiction of the NLRB. As a result, this Court lacks jurisdiction to hear Charge 10. Moreover, since Charge 10 was filed with the NLRB in 1993, Charge 11 would be barred by the six-month statute of limitations under the NLRA. E. Exhaustion of Intra-Union Remedies

In Charge 9, Masters alleges that SAG refuses to inform its members of their rights and responsibilities under LMRDA in violation of 29 U.S.C. § 415. Section 105 of LMRDA provides that "[e]very labor organization shall inform its members concerning the provisions of [Title I]." § 415. However, under § 101(a)(4), "any . . . member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within [the labor] organization, before instituting legal or administrative proceedings. . . ." § 411(a)(4). The Ninth Circuit has held that a district court has the discretion to dismiss a § 415 claim if the plaintiff did not exhaust his intra-union remedies pursuant to § 101(a)(4). Kofoed v. Int'l Bhd. of Elec. Workers, Local 48, 237 F.3d 1001, 1006 (9th Cir. 2000);Stelling v. Int'l Bhd. of Elec. Workers Local Union No. 1547, 587 F.2d 1379, 1390-91 (9th Cir. 1978). Thus, since Masters did not allege or establish that he exhausted his intra-union remedies pursuant to § 101(a)(4), the Court grants summary judgment with respect to Master's § 105 claim on that basis.

F. Charge 8

In Charge 8, Masters alleges that SAG officers serve as both officers of the labor union and the labor organization, creating a conflict of interest to the detriment of the labor organization and its members in violation of 29 U.S.C. § 501(a). Even leaving aside the question of whether Charge 8 alleges conduct actionable or cognizable under § 501 of LMRDA, Charge 8 fails because a labor union cannot be held liable under § 501 of LMRDA. Head v. Bhd. of Railway, Airline Steamship Clerks, 512 F.2d 398, 398 n. 1 (2d Cir. 1975) ("Although the district court did not reach the issue, it is clear that § 501 does not provide for an action against a labor organization."); Pignotti v. Local 3, Sheet Metal Workers' Ass'n, 477 F.2d 825, 832 (8th Cir. 1973); Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972). Moreover, even if Masters' claim were cognizable, he failed to establish the necessary prerequisites to a suit by a union member under § 501.

Section 501(a) of LMRDA provides that

[t]he officers, agents, shop stewards, and other representatives of a labor organization occupy positions or trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organizations as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization.

§ 501(a). Under 501(b), a member of the union may sue the appropriate officer, agent, shop steward, or other representative for alleged violations of 501(b) if "the labor organization or its board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so. . . ." § 501(b). However, "[n]o such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown. . . ." Id. Thus,

[b]efore an action may be brought pursuant to Section 501(b), the plaintiff must: (1) demonstrate that he has requested that the union or its governing officers bring legal action, recover damages, secure an accounting, or obtain other appropriate relief; (2) that upon request, the union refused or failed to do so within a reasonable time; and (3) obtain leave of the court to bring an action with a showing of good cause.

IV. CONCLUSION

The Screen Actors Guild's Motion for Summary Judgment or Partial Summary Judgment [32] is hereby GRANTED with respect to all remaining claims. All of Masters' LMRDA claims fail as a matter of law because he is not a member of SAG within the meaning of § 3(o) of LMRDA and therefore lacks standing to bring LMRDA claims. All of Masters' DFR claims fail as a matter of law because they involve the internal affairs of SAG. Moreover, Masters' DFR claims are time-barred. All of Masters' First Amendment claims fail as a matter of law because he has not shown that SAG is a state actor. Charge 10 fails as a matter of law because a claim of excessive dues is within the primary jurisdiction of the NLRB and because it is time-barred. Charge 9 fails because Masters did not exhaust his intra-union remedies. And Charge 8 fails because claims under § 501 of LMRDA may not be brought against labor unions.

IT SO ORDERED.