Imsande-Sexton

MEMORANDUM **

Linda Imsande-Sexton appeals from the district court’s entry of summary judgment in favor of defendants in her action alleging a denial of due process and retaliation under the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411 (a)(2), (a)(5). Defendants cross-appeal from the district court’s order denying their motion to dismiss for failure to exhaust internal union remedies. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s grant of summary judgment, La Vine v. Blaine Sch. Dist., 257 F.3d 981 , 987 (9th Cir.2001), and the court’s application of substantive law with respect to the exhaustion of internal union remedies, Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 887 F.2d 365, 369 (9th Cir.1988) (per curiam). We affirm.

The district court erroneously concluded that defendants’ motion to dismiss was untimely. Although a defendant may assert an exhaustion defense in a pre-answer motion under Rule 12(b) of the Federal Rules of Civil Procedure, a defendant is not required to do so. Ritza, 837 F.2d at 368-69. We nonetheless affirm the denial of defendants’ motion to dismiss because internal union…