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SERRANO v. USA UNITED TRANSIT BUS INC., 09-5032-cv. (2010)

Court: Court of Appeals for the Second Circuit Number: infco20101123122 Visitors: 10
Filed: Nov. 23, 2010
Latest Update: Nov. 23, 2010
Summary: SUMMARY ORDER UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Appellants Jose Serrano and Luis Beniquez, pro se , appeal the district court's judgment granting the Defendants' Fed. R. Civ. P. 12(b)(6) motions to dismiss their complaint, which alleged a hybrid 301 (of the Labor Management Relations Act)/fair representation claim. See 29 U.S.C. 185; DelCostello v. Int'l Bhd. of Teamsters , 462 U.S. 151 , 164-65 (
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SUMMARY ORDER

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.

Appellants Jose Serrano and Luis Beniquez, pro se, appeal the district court's judgment granting the Defendants' Fed. R. Civ. P. 12(b)(6) motions to dismiss their complaint, which alleged a hybrid § 301 (of the Labor Management Relations Act)/fair representation claim. See 29 U.S.C. § 185; DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). The district court denied Plaintiffs' request for equitable tolling of the limitations period, and dismissed the claims as untimely filed. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

"We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We review a district court's denial of equitable tolling for abuse of discretion. See Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 (2d Cir. 2003). Hybrid § 301/fair representation claims have a six-month statute of limitations. See Carrion v. Enter. Ass'n., Metal Trades Branch Local Union 638, 227 F.3d 29, 33-34 (2d Cir. 2000) (citing DelCostello, 462 U.S. at 164-65).

Based on our review of the record, we conclude that the district court correctly determined that Serrano and Beniquez filed their complaint well after the expiration of the six-month statute of limitations. The court did not abuse its discretion in determining that Appellants did not establish the "reasonable diligence" and "extraordinary" circumstances necessary for equitable tolling. See Zerilli-Edelglass, 333 F.3d at 80-81. Appellants' letter to the Department of Labor on April 14, 2008, shows awareness of the facts that gave rise to their claim more than a year before the present action was filed. Moreover, they do not explain how Serrano's mental illness stood in the way of his ability to comply with the limitations period; their participation in other litigation during the same time period belies any such inhibition.

We have considered all of the remaining arguments on appeal and found them to be without merit. For the foregoing reasons, the order of the district court is hereby AFFIRMED.

FootNotes


* The Clerk of the Court is directed to amend the official caption to conform to the caption in this order.
Source:  Leagle

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