NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABIGAIL THOMPSON, No. 20-55771

Plaintiff-Appellant, D.C. No. 2:19-cv-04876-GW-SK v.

LOS ROBLES REGIONAL MEDICAL MEMORANDUM*

CENTER, a California corporation; et al.,

Defendants-Appellees.

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. 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 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.

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