Opinion
Argued and Submitted April 4, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Longshoremen brought action alleging that unions failed to operate a joint hiring hall in accordance with the provisions of the collective bargaining agreement. The United States District Court for the Western District of Washington, Robert J. Bryan, J., granted unions' motions to dismiss and for summary judgment. Longshoreman appealed, having been granted an extension of time to file the notice appeal. Unions appealed grant of extension. The Court of Appeals held that: (1) district court did not abuse its discretion in determining that longshoremen demonstrated "excusable neglect" for failing to file a timely notice of appeal; (2) six-month statute of limitations set forth in National Labor Relations Act (NLRA) applied to longshoremen's duty of fair representation claim and hybrid § 301/duty of fair representation claim; (3) general and conclusory allegations with regard to the predicate acts allegedly committed by unions were insufficient to state a claim under Racketeer Influenced and Corrupt Organizations (RICO) Act; and (4) unions were not "fiduciaries" within the meaning of Employee Retirement Income Security Act (ERISA).
Affirmed. [Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding.
Before THOMPSON, TROTT, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
In appeal no. 99-35295, a group of longshoremen from the Port of Tacoma, Washington, appeal the district court's dismissal, on motions to dismiss and for summary judgment, of their action alleging that the Pacific Maritime Association (PMA) and the International Longshore and Warehouse Union (ILWU) failed to operate a joint hiring hall in accordance with the provisions of the collective bargaining agreement. In appeal nos. 99-35576 and 99-35589, PMA and ILWU appeal the district court's order granting the plaintiffs' request for an extension of time to file their notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. DISCUSSION
The district court did not abuse its discretion in determining that the plaintiffs demonstrated "excusable neglect" under Fed. R.App. P. 4(a)(5) for failing to file a timely notice of appeal. The court applied the appropriate test under Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), weighed the relevant factors (length of delay, reason for delay, prejudice to the non-movant, impact on judicial proceedings), and arrived at a conclusion that, while lenient to the plaintiffs, is not a clear error of judgment. See Marx v. Loral Corp., 87 F.3d 1049, 1053-54 (9th Cir.1996).
The district court did not err by granting summary judgment before plaintiffs had an adequate opportunity to conduct discovery because plaintiffs failed to file a motion under Fed.R.Civ.P. 56(f) requesting discovery. See Brae Transp. Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986) ( "Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment."). In addition, although plaintiffs referred to Rule 56(f) in their opposition papers, Brae Transp. holds that such references do not qualify as motions under Rule 56(f). See id.
The district court did not err by applying the six-month statute of limitations set forth in section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(d), to plaintiffs' duty of fair representation claim and hybrid § 301/duty of fair representation claim against ILWU and PMA. In DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court concluded that both of these claims are governed by the six-month statute of limitations. See id. at 169-71, 103 S.Ct. 2281; see also Moore v. Local Union 569 of the Int'l Bhd. of Elec. Workers, 989 F.2d 1534, 1541 (9th Cir.1993); Kalombo v. Hughes Market Inc., 886 F.2d 258, 259 (9th Cir.1989); Conley v. Int'l Bhd. of Elec. Workers, 810 F.2d 913, 915 (9th Cir.1987).
Plaintiffs' reliance on Reed v. United Transp. Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989), is misplaced. The statute at issue in Reed was the Labor Management Reporting and Disclosure Act (LMRDA), not the NLRA. Moreover, unlike the case in Reed, plaintiffs' claims do not involve simply an "internal union dispute" because the hiring hall and dispatch system are jointly operated by ILWU and PMA.
The district court properly dismissed plaintiffs' RICO claims for failure to state a claim upon which relief can be granted and for failing to satisfy the specificity requirement under Federal Rule of Civil Procedure 9(b). The amended complaint contains only general and conclusory allegations with regard to the predicate acts allegedly committed by PMA and ILWU. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991) (stating that the requirements of Rule 9(b) must be followed in RICO actions alleging predicate acts of fraud); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir.1995) (stating that conclusory allegations of racketeering are insufficient to state a claim under RICO).
Plaintiffs failed to suggest amendments that might cure the complaint's defects. And, given the nature of the allegations upon which plaintiffs rely to establish the predicate acts of fraud, we fail to see how plaintiffs could state a proper claim for relief. The district court did not err in dismissing plaintiffs' RICO claim without leave to amend. See Adam v. Hawaii, 235 F.3d 1160, 1164 (9th Cir.2000) (dismissal without leave to amend is proper where it
Page 489.
is clear that the complaint could not be saved by amendment).
Finally, the district court properly dismissed plaintiffs' ERISA claim on the ground that PMA and ILWU are not fiduciaries within the meaning of 29 U.S.C. § 1002(21)(A). The PMA-ILWU pension plan is administered by six trustees; PMA and ILWU are not plan administrators. " '[P]ersons who have no power to make any decisions as to plan policy, interpretation, practices or procedures' are not fiduciaries." ITT Corp. v. General Am. Life Ins. Co., 107 F.3d 1415, 1420 (9th Cir.1997) (quoting 29 C.F.R. § 2509.75-8 at D-2).
In sum, in appeal nos. 99-35576 and 99-35589, we AFFIRM the district court's order granting the plaintiffs' request for extension of time to file a notice of appeal, and, in appeal no. 99-35295, we AFFIRM the district court's order of dismissal and summary judgment.
AFFIRMED.