Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMAD HASSAN, Case No.: 3:25-cv-869-CAB-AHG 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 ANNETTE BAXTER, [Doc. No. 16] 15 Defendant. 16 17 Plaintiff Imad Hassan (“Plaintiff” or “Hassan”) filed his original Complaint in this 18 action on April 11, 2025, naming Annette Baxter (“Defendant” or “Baxter”) as the sole 19 defendant. [Doc. No. 1.] On April 14, 2025, the Court sua sponte dismissed the Complaint 20 with leave to amend on the grounds that it was “nearly blank” and did not “give any notice 21 of the claims at issue against Defendant.” [Doc. Nos. 1, 4.] Plaintiff then filed a First 22 Amended Complaint (“FAC”), again naming Baxter as the only defendant. [Doc. No. 7.] 23 Now pending before the Court is Defendant’s motion to dismiss the FAC under (1) Fed. 24 R. Civ. P. 12(b)(5) for failure to effect proper service on Baxter and (2) under 12(b)(6) 25 because individual union employees cannot be held personally liable for alleged breaches 26 of a union’s duty of fair representation. [Doc. No. 16.] For the following reasons, the 27 Court GRANTS Defendant’s motion to dismiss. 28 /// 1 I. BACKGROUND 2 Plaintiff is a former employee of Kaiser Permanente (“Kaiser”) under a collective- 3 bargaining agreement between Kaiser and Office Professional Employees and 4 International Union Local 30 (“OPEIU”). [FAC at 7–8; Doc. No. 16 at 3.] The FAC 5 alleges that Baxter—OPEIU’s former Director of Member Services—breached the duty of 6 fair representation under Section 301 of the Labor-Management Relations Act (“LMRA”) 7 by declining to arbitrate a grievance challenging Plaintiff’s termination. [FAC at 3, 5, 7; 8 Doc. No. 16 at 3.] 9 The docket reflects several unsuccessful attempts by Plaintiff to serve Defendant. 10 [Doc. Nos. 8, 14, 15.] The latest reflects that on January 2, 2026, Plaintiff appears to have 11 personally delivered a summons to the San Diego Office of OPEIU. [Doc. Nos. 15.] 12 Baxter attests that she retired from OPEIU on April 5, 2025 and has not returned to 13 OPEIU’s office since then. [Doc. No. 16 at 3.] 14 II. DISCUSSION 15 Defendant filed her motion to dismiss on February 17, 2026; it indicated a hearing 16 date on the motion of March 24, 2026. [Doc. No. 16 at 1.] Under Local Rule 7.1, Plaintiff 17 was required to file an opposition to Defendant’s motion “not later than fourteen (14) 18 calendar days prior to the noticed hearing” or file a notice of non-opposition. CivLR 19 7.1(e)(2), 7.1(f)(3)(a). Plaintiff’s response was therefore due on March 10, 2026. To date, 20 Plaintiff has not filed any opposition or a statement of non-opposition. Under Local Rule 21 7.1(f)(3)(c), this “failure may constitute a consent to the granting of a motion or other 22 request for ruling by the Court.” Given the numerous opportunities the Court has given 23 the Plaintiff to timely and correctly pursue this case, the Court heeds Local Rule 24 7.1(f)(3)(c) and GRANTS Defendant’s motion to dismiss. 25 The Court would come to the same conclusion based on the merits of the motion to 26 dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). LMRA § 301(b) 27 expressly provides that a labor organization “may sue or be sued as an entity” and that any 28 judgment “shall not be enforceable against any individual member or his assets.” 29 U.S.C. 1 185(b). Courts have thus long held that claims against a union under the LMRA— 2 including a duty of fair representation clatm—may be asserted only against the union as an 3 ||entity, not against individual union officers, employees, or agents, such as Defendant 4 ||Baxter. See Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985) (“It has long been 5 recognized that union officers and employees are not individually liable to third parties for 6 ||acts performed as representatives of the union in the collective bargaining process.”); 7 || Evangelista v. Inlandboatmen’s Union of Pac., 777 F.2d 1390, 1400 (9th Cir. 1985) (“The 8 || language of section 301(b) and the Supreme Court’s decision in Atkinson also provide a 9 || shield for individual union members in suits for breach of the duty of fair representation.”). 10 || Here, the sole defendant is Baxter. The union itself is not a named defendant. □□□□□□□□□□□ 11 ||Complaint must therefore be dismissed under Rule 12(b)(6) for failure to state a claim.! 12 If. CONCLUSION 13 The Court will provide Plaintiff one last opportunity to file a Second Amended 14 ||Complaint which remedies the deficiencies identified in this and any of the Court’s 15 || previous orders. Plaintiff's Second Amended Complaint must adhere to this Court’s Local 16 || Rules and the Federal Rules of Civil Procedure. The Second Amended Complaint must be 17 || filed by May 1, 2026 and proof of service must be filed by May 8, 2026. Otherwise, the 18 || Court will dismiss this case with prejudice under Fed. R. Civ. P. 41(b). 19 Itis SO ORDERED. 20 || Dated: April 9, 2026 21 (ig Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 2 26 ||! Finally, given the ruling on the motion to dismiss under Rule 12(b)(6), the Court need not address Defendant’s additional bases for dismissal for lack of personal jurisdiction over Defendant and for 27 || failure to effect service. However, the Court notes that “dismissals for failure to effect service and for 3g || lack of personal jurisdiction should be without prejudice.” Frerks v. Wolf, 840 F. App’x 311, 312 (9th Cir. 2021).