Abigail Thompson v. Los Robles Regional Medical Center, a California corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABIGAIL THOMPSON,
Plaintiff-Appellant,
v.
LOS ROBLES REGIONAL MEDICAL
CENTER, a California corporation; et al.,
Defendants-Appellees.
No. 20-55771
D.C. No.
2:19-cv-04876-GW-SK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 18, 2021
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,** District
Judge.
Plaintiff-Appellant Abigail Thompson appeals from the district court’s
dismissal without leave to amend of her hybrid action brought under Section 301 of
the Labor Management Relations Act. Having jurisdiction under 28 U.S.C. § 1291,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
OCT 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
we reverse and remand with instructions for the district court to allow Thompson to
file an amended complaint.
A district court should give leave to amend “freely” but may deny leave to
amend when amendment would be futile. Fed. R. Civ. P. 15(a)(2); Sonoma Cty.
Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013).
Amendment is futile only if “no set of facts can be proved under the amendment to
the pleadings that would constitute a valid and sufficient claim or defense.” Missouri
ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (quoting Miller v. Rykoff-
Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
Citing Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299 (7th Cir. 1983), the
district court issued a tentative ruling concluding that Thompson’s claim was
untimely. Specifically, the district court determined that Thompson should have
been on notice that her grievance was dropped after certain procedural deadlines
specified in the applicable collective bargaining agreement (CBA) were missed. See
Teamsters Union Local 315 v. Great W. Chem. Co., 781 F.2d 764, 769 (9th Cir.
1986). Thompson disputed the tentative ruling, arguing she had no reason to know
her grievance had been dropped because it was “common knowledge” that Appellees
routinely ignored the CBA’s deadlines. She further argued she should be allowed to
amend to show that her claim was timely under principles of equitable estoppel and
equitable tolling.

-- 2 of 3 --

3
Rather than allowing Thompson to amend, the district court gave her 10 days
to file an offer of proof showing her claim was timely, which she filed. But the
district court did not accept Thompson’s factual allegations as true and construe
them in her favor in deciding whether the allegations constituted a set of facts that
could possibly establish timeliness. See Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d
1028, 1029–30 (9th Cir. 2009). Instead, it considered the merits of her assertions,
including questioning the “reliability” of the declarations that Thompson submitted
and seemingly requiring Thompson to provide evidence in support of her allegations.
This was improper at the pleading stage.
Although we do not opine on the likelihood of success of Thompson’s claims,
taking as true her allegations that Appellees routinely ignored the CBA deadlines
and that this practice was widely known raises a possibility that she did not have
reason to know more than six months before she filed suit that her grievance had
been dropped. See Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116, 1120–21 (9th
Cir. 2006) (discussing equitable doctrines related to timeliness). Thus, we cannot
say definitively at this point that there is no set of facts that would establish for
pleading purposes that Thompson’s claim is timely.
REVERSED AND REMANDED.

-- 3 of 3 --