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Pacific moves for judgment on the pleadings under Fed. R. Civ. P. 12(c) as well as for

summary judgment pursuant to Fed. R. Civ. P. 56. Because the court takes into consideration

Pacific’s declarations and exhibits attached to its motion, the court treats the submission as a

summary judgment motion. The court further notes that there is no question that Pacific’s

motion put Mr. Durbin on notice that the court would consider materials outside the pleadings. 

ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARK DURBIN,

Plaintiff,

v.

INTERNATIONAL LONGSHORE &

WAREHOUSE UNION, LOCAL 52, et al.,

Defendants.

CASE NO. C06-287JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion for summary judgment from

Defendant International Longshore & Warehouse Union, Local 52 (“Local 52”) (Dkt. # 8)

and a motion for summary judgment1

 from Defendant Pacific Maritime Association

(“Pacific”) (Dkt. # 9). The court has considered the papers filed in support of and in

opposition to the motions and finds the matter appropriate for disposition without oral

argument. For the reasons stated below, the court GRANTS both motions.

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ORDER – 2

II. BACKGROUND

Plaintiff Mark Durbin worked as a clerk in the longshore industry. A collective

bargaining agreement (“CBA”), negotiated between his union, Local 52, and a multiemployer association, Pacific, governed the terms of his employment. For reasons

unknown to the court, Mr. Durbin failed to make himself available for work, which twice

resulted in his termination – once in 1992, and again in 2000. 

Under his CBA, the decision to terminate (or, “deregister”) an employee rests with

the Joint Port Labor Relations Committee (“the Committee”), comprised of

representatives from Local 52 and Pacific. After the Committee agreed to deregister Mr.

Durbin for the second time on June 27, 2000, Pacific purportedly sent a letter by certified

mail, dated July 10, 2000, reflecting the Committee’s decision. Starkey Decl. at 24, 25. 

The letter cites Mr. Durbin’s “failure to work, respond to correspondence and appear as

requested by the Committee” as justification for the deregistration decision. Id. at 25. 

Mr. Durbin contends he never received the letter, although Pacific used the address from

Mr. Durbin’s own letterhead. Compare id. at 20, with id. at 25. He also appears to have

ignored a prior letter dated May 4, 2000 warning him of the consequences of failing to

appear for work. Id. at 23. Mr. Durbin does not contend that he moved during this time

period, he simply denies receiving the letters. Long-term Pacific employee Sandra

Starkey attests that she received a return receipt for the July 10, 2000 letter, signed by

Mr. Durbin, although she has been unable to locate a copy of the receipt. Second Starkey

Decl. ¶¶ 2-5. In any event, it is undisputed that as of December 1999, Mr. Durbin went

on self-declared “inactive status” and remained out of contact with the longshore industry

for several years.

In October 2004, Mr. Durbin attempted to reactivate his status as a union member

and longshore clerk. He alleges that union representative Sean O’Donnell, “strung [him]

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ORDER – 3

along” for several months, after which Mr. O’Donnell finally informed him that Local 52

would not assist him with his request. According to Mr. Durbin, his attempt to grieve his

claim likewise failed as Local 52 no longer considered him a member of a collective

bargaining unit. On January 31, 2006, Mr. Durbin filed suit in state court alleging breach

of contract, unfair labor practices, discrimination and wrongful termination. Defendants

removed the action to federal court and now move to dismiss all claims.

III. ANALYSIS 

In examining a summary judgment motion, the court must draw all inferences from

the admissible evidence in the light most favorable to the non-moving party. Addisu v.

Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is proper

where there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial

burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the

opposing party must show that there is a genuine issue of fact for trial. Matsushita Elect.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party must

present significant and probative evidence to support its claim or defense. Intel Corp. v.

Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The non-moving

party cannot simply rest on its allegation without any significant probative evidence

tending to support the complaint. See U.A. Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d

1465, 1471 (9th Cir. 1995). “[A] complete failure of proof concerning an essential

element of the non-moving party’s case necessarily renders all other facts immaterial.” 

Celotex, 477 U.S. at 322-23. 

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Section 301 reads, in part: “[s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry affecting commerce . . . may be

brought in any district court of the United States having jurisdiction of the parties . . . .” 

29 U.S.C. § 185(a). Because Mr. Durbin’s claims for wrongful termination and breach of

contract require the court to interpret his CBA, the court considers such claims under section

301. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). 

3

The court rejects Mr. Durbin’s contention that he remained an “employable,” registered

member of his union notwithstanding the Committee’s decision. Mr. Durbin argues that the

Committee’s termination in June 2000 was not a final decision, because an arbitrator did not

confirm the decision. Mr. Durbin’s reading of the CBA is incorrect. The CBA provision at

issue only applies to circumstances, unlike those here, where the Committee members are in

disagreement. Pl.’s First Opp’n at 7 (citing CBA ¶ 17.271); Second Starkey Decl. ¶ 6; id at 8

(citing CBA ¶ 17.27).

ORDER – 4

A. Breach of Contract/Unfair Labor Practice Claim

Mr. Durbin’s unfair labor practice, breach of contract, and wrongful termination

claims constitute a “hybrid” section 301 claim under the Labor Management Relations

Act (“LMRA”), 29 U.S.C. § 185.2

 See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.

151, 163-64 (1983). Such claims are subject to a six month statute of limitations. Id. at

170-71 (citing 29 U.S.C. § 160(b)). The six-month limitations period runs from the time

that Mr. Durbin knew or reasonably should have known of the facts underlying his claim. 

See Allen v. United Food & Commercial Workers Int’l Union, 43 F.3d 424, 427 (9th Cir.

1994). Here, Mr. Durbin filed his complaint on January 31, 2006, which preserved any

of his claims that accrued on August 1, 2005 or later. 

The court concludes that the six-month statute of limitations under

29 U.S.C. § 160(b) bars Mr. Durbin’s section 301 claims. Mr. Durbin’s claims of

contract breach, wrongful termination, and unfair practices stem from the Committee’s

decision to deregister him on June 27, 2000.3

 The limitations period began to run on his

claims on or around July 10, 2000 when Pacific sent him a letter by certified mail to the

address Mr. Durbin included on his own letterhead. Cf. Nelmida v. Shelly Eurocars, Inc.,

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ORDER – 5

112 F.3d 380, 384 (9th Cir. 1997) (holding that limitations period for employee to file

Title VII claims began running when right-to-sue letter sent to employee’s address of

record). Accordingly, Mr. Durbin waited five years too long to assert his claims. 

The court also rejects Mr. Durbin’s request to toll the statute of limitations. Mr.

Durbin contends that he received a letter in early January 2006 confirming his

deregistered status for the first time. There is no copy of this letter or any other evidence

to support Mr. Durbin’s version of events, other than his own declaration. Even if the

court accepts Mr. Durbin’s contention that he did not receive the July 10, 2000 letter

conveying the Committee’s decision, no reasonable jury could conclude that Mr. Durbin

did not know that Local 52 and Pacific considered him deregistered by mid-2000. It is

undisputed that by July 2000, Mr. Durbin had already spent six months on self-declared

“inactive status”; and that he would spend another four years away from the industry

before he attempted any further contact. No reasonable jury could conclude that Mr.

Durbin lacked notice of the consequences of failing to make himself available for work

when the Committee had already deregistered him for the same conduct in 1992. 

Because the court concludes that Mr. Durbin’s claims, if any, accrued in July

2000, the six-month statute of limitations bars his section 301 claims. Moreover, no

reasonable jury could conclude that Mr. Durbin did not know or could not have known of

his deregistered status by mid-2000. Accordingly, the court grants Defendants’ motions

for summary judgment on Mr. Durbin’s claims for breach of contract, wrongful

termination, and unfair labor practices.

B. Discrimination Claims 

Besides invoking the term “discrimination,” Mr. Durbin does not cite any evidence

(or, for that matter, allege facts) in support of his civil rights claims under various state

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Mr. Durbin alleges discrimination under 42 U.S.C. §§ 1981, 2000h-4, and

RCW §§ 49.36.020, 49.60.190.

ORDER – 6

and federal laws.4 Among other deficiencies, Mr. Durbin does not allege that he is a

member of any protected group and he fails to provide any indication whatsoever of the

circumstances giving rise to his claim. His contention that Mr. O’Donnell delayed

responding to his reinstatement request is insufficient to support a claim for

discrimination. The court therefore grants Defendants’ motions for summary judgment

on Mr. Durbin’s claims of discrimination.

IV. CONCLUSION

For the reasons stated above, the court GRANTS Defendants’ motions (Dkt. ## 8,

9) and directs the clerk to enter judgment in favor of Defendants. 

Dated this 27th day of October, 2006.

A JAMES L. ROBART

United States District Judge

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