Michael Ward v. Kroger Company ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 26 2010
MOLLY C. DWYER, CLERK
MICHAEL WARD; et al., No. 08-56614 U.S. COURT OF APPEALS
Plaintiffs - Appellants, D.C. No. CV-07-01085-GPS-JTL
v.
MEMORANDUM *
KROGER COMPANY, an Ohio
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
This class action concerns the harm resulting from a well-publicized lockout
by Ralphs grocery stores in Southern California in late 2003 and early 2004.
Plaintiffs are individual union employees of Ralphs who brought civil claims under
the Racketeer Influenced and Corrupt Organizations Act ("RICO") against
Defendants Ralphs, Fred Meyer (the parent company of Ralphs), Kroger (the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
parent company of Fred Meyer), and individual employees of the three grocery
stores. The district court dismissed the claims against Ralphs, and Plaintiffs do not
appeal that ruling. After having granted leave to amend three times, the district
court dismissed Plaintiffs’ third amended complaint. On de novo review, Scharff
v. Raytheon Co. Short Term Disability Plan, 581 F.3d 899, 903 (9th Cir. 2009), we
affirm.
1. Through their unions, Plaintiffs waived their right to sue Kroger.
See Mahon v. NLRB, 808 F.2d 1342, 1345 (9th Cir. 1987) (noting that "it has long
been recognized that a union may waive a member’s statutorily protected rights"
(citing Metro. Edison Co. v. NLRB, 460 U.S. 693, 705 (1983))). The district
court’s dismissal of all claims against Kroger therefore was proper.
2. Plaintiffs failed to allege a "pattern" of racketeering activity sufficient to
meet the continuity requirement. See Turner v. Cook, 362 F.3d 1219, 1229-30 (9th
Cir. 2004) (discussing the continuity requirement). The lockout lasted only a few
months. At best, the allegations in the complaint of specific predicate acts
encompass the period from September 30, 2003, to February 29, 2004. "Activity
that lasts only a few months is not sufficiently continuous." Howard v. Am. Online
Inc., 208 F.3d 741, 750 (9th Cir. 2000); see also Religious Tech. Ctr. v.
Wollersheim, 971 F.2d 364, 367 (9th Cir. 1992) (per curiam) ("A pattern of
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activity lasting only a few months does not reflect the ‘long-term criminal conduct’
to which RICO was intended to apply." (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492
U.S. 229, 242 (1989))). Plaintiffs’ allegations encompass a shorter period of time
than the time period at issue in Wollersheim, which we rejected as insufficient.
We therefore affirm the district court on this ground.
Plaintiffs incorrectly assert that we may not reach this issue. "[W]e can
affirm on any ground supported by the record." Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). Nor is this ground a surprise to Plaintiffs. The district
court dismissed an earlier version of Plaintiffs’ complaint on this very ground, and
the issue was fully briefed on appeal.
For similar reasons, we reject Plaintiffs’ argument that we should remand to
the district court to permit yet another amendment to the complaint. As noted,
Plaintiffs have amended the complaint three times. Additionally, no amount of
amendment could change the fact that the lockout lasted only a few months. The
later alleged cover-up is not part of the same "pattern" of racketeering activity that
forms the basis for the claim.
3. Because we affirm on the ground that Plaintiffs failed to state a claim, we
need not reach the preclusion or exclusivity issue.
AFFIRMED.
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