
    Patrick ALLEN, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
    No. 12 Civ. 02378(ILG)(RER).
    United States District Court, E.D. New York.
    Dec. 19, 2013.
    
      Patrick Allen, William John Fallon, Rockville Centre, NY, for Plaintiff.
    Basil Constantine Sitaras, Daniel L. Schwartz, Day Pitney LLP, Stamford, CT, for Defendant.
   MEMORANDUM AND ORDER

GLASSER, Senior District Judge.

Plaintiff has objected, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), to the Report and Recommendation of Magistrate Judge Ramon E. Reyes, Jr. (Dkt. No. 26) (the “R & R”), dated October 25, 2013, recommending that the Court deny plaintiffs motion for leave to amend his complaint. For the reasons stated below, the Court adopts the R & R in its entirety.

BACKGROUND

Patrick Allen filed a complaint against his former employer, United • Parcel Service (“UPS”), in New York State court on March 31, 2012, for violating the New York State Human Rights Law (“NYSHRL”), NY. Exec. §§ 290-301, and the New York City Human Rights, Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101-131. Notice of Removal (Dkt. No. 1). He alleged that he worked for UPS from 1993 to 2009 as a “pre-loader,” which involved sorting packages before they were loaded onto trucks. Id. He was terminated on October 29, 2009, after he reported a disabling work injury (that he does not describe in his complaint), because UPS concluded he had faked the injury. Id.

UPS removed the action to this Court on May 11, 2012. Notice of Removal. On July 5, 2012, Judge Reyes entered a scheduling order establishing a deadline for amending pleadings of September 3, 2012. Scheduling Order (Dkt. No. 9). Discovery was originally scheduled to be completed by January 15, 2013, but the deadline was extended to April 15, 2013. Id.; Order dated January 10, 2013. On April 18, 2013, Allen’s attorney asked for, and was granted, leave to withdraw due to a breakdown in his relationship with Allen. Order dated April 18, 2013. Allen’s new attorney filed a notice of appearance on May 17, 2013. Notice of Appearance (Dkt. No. 16).

On May 28, 2013, Allen moved for leave to amend his complaint to add a claim of breach of a collective bargaining agreement (“CBA”) pursuant to § 301 of the Labor Management Relations Act (“LMRA”), codified at 29 U.S.C. § 185. Motion to Amend (Dkt. No. 17). UPS responded on June 6, 2013. (“Def.’s First Response”) (Dkt. No. 19). Allen filed a new proposed amended complaint (confusingly filed as an “Amended Complaint”) on June 13, 2013. (“Proposed Am. Compl.”) (Dkt. No. 20). UPS filed a second “response” to address the new proposed amended complaint on June 20, 2013. (“Def.’s Second Response”) (Dkt. No. 23). Allen then filed what he called a “motion to amend/correct/supplement,” which is in substance a reply to UPS’s responses, on June 25, 2013. (“PL’s Reply”) (Dkt. No. 25).

Allen’s proposed claim is based on allegations that UPS breached the CBA between his union and UPS by terminating his employment without giving him 72 hours’ notice, assigning a union delegate, conducting a grievance hearing, or arbitrating his grievance. Proposed Am. Compl. at ¶¶ 55-60. He also alleges that his union breached its duty to fairly represent him in the grievance proceedings by refusing to assign a union delegate, which, combined with UPS’s actions, prevented him from exhausting the grievance process. Id. at ¶¶ 61-62.

This Court referred the motion to Judge Reyes for a report and recommendation. (Dkt. No. 24). In the R & R, Judge Reyes recommends denying Allen’s motion for leave to amend because the proposed § 301 claim would be futile on account of being untimely and because Allen hasn’t demonstrated good cause for seeking to amend his complaint several months after the deadline to do so passed. Allen filed an objection to the R & R on November 12, 2013. (“Pl.’s Objection”) (Dkt. No. 32). UPS filed a response on November 20, 2013. Defendant’s Opposition (“Def.’s Opp’n”) (Dkt. No. 33).

DISCUSSION

I. Timeliness of Objection

UPS asserts that Allen’s objection, filed on November 12, was untimely and that he has accordingly waived review of the R & R. Def.’s Opp’n at 2-3. Parties have 14 days after service of an R & R to file objections. Fed. R. Civ. P. 72(a), (b)(2). If an R & R is served electronically, as it was here, “3 days are added after the period would otherwise expire.” Fed. R. Civ. P. 6(d); accord Green v. City of New York, No. 05-CV-429, 2010 WL 148128, at *3 n. 1 (E.D.N.Y. Jan. 14, 2010); Sembler v. Advanta Bank Corp., No. 07-CV-2493, 2008 WL 2965661, at *1 (E.D.N.Y. Aug. 1, 2008). The R & R was served electronically on October 25. Fourteen days after October 25 was November 8, and three days after November 8 was November 11. Since November 11 was a legal holiday (Veterans’ Day), Allen had until the next business day — November 12 — to file his objection. See Fed. R. Crv. P. 6(a)(1)(C); Local Crv. R. 6.4; Blessing v. Sirius XM Radio, Inc., 756 F.Supp.2d 445, 452-53 (S.D.N.Y.2010). His objection is thus timely and he has not waived further judicial review of the R & R.

II. Standard of Review

For a dispositive matter, the district court reviews de novo the parts of the R & R to which the parties object and reviews for clear error the parts of the R & R to which the parties do not object. Fed. R. Civ. P. 72(b)(3); Integrity Elecs., Inc. v. Garden State Distribs., No. 09 Civ. 2367, 2012 WL 1041349, at *1 (E.D.N.Y. Mar. 28, 2012). For a non-dispositive matter, the district court reviews the R & R for clear error. Fed. R. Crv. P. 72(a); Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Authority is divided about whether a motion for leave to amend a complaint is a dispositive or non-dispositive matter. See Jean-Laurent v. Wilkerson, 461 Fed.Appx. 18, 25 (2d Cir.2012) (remanding after the district court treated a recommendation to partially deny motion to amend as non-dispositive); Fielding, 510 F.3d at 178 (stating in dicta that a motion to amend a complaint is non-dis-positive); Klaper v. Cypress Hills Cemetery, No. 10-CV-1811, 2012 WL 959403, at *6 n. 6 (E.D.N.Y. March 21, 2012) (explaining that the Second Circuit has not explicitly addressed this question and that some district courts have reviewed recommendations to deny a motion to amend as dispositive and to grant a motion as non-dispositive). In any event, whether reviewed de novo or for clear error, this Court would adopt the R & R. See Wilson v. City of New York, No. 06-CV-229, 2008 WL 1909212, at *3-4 (E.D.N.Y. Apr. 30, 2008) (deciding not to take a position on this question because the court would adopt the R & R either way). The district court may accept, reject, or modify, in whole or in part, the R & R. Fed. R. Crv. P. 72(a), (b)(3); Integrity Elecs., 2012 WL 1041349, at *1.

III. Allen’s Motion for Leave to Amend His Complaint

Federal Rule of Civil Procedure 15 instructs a Court to freely grant leave to amend a complaint. Fed. R. Civ. P. 15(a)(2). Pursuant to Rule 15, however, a Court has discretion to deny a motion for leave to amend a complaint for, inter alia, futility of the amendment. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir.2007). An amendment is futile if the proposed claim could not withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Islamic Soc’y of Fire Dep’t Pers. v. City of New York, 205 F.Supp.2d 75, 80 (E.D.N.Y. 2002). When a motion for leave to amend a complaint is made after a scheduling order’s deadline to do so has elapsed, as here, the Court must balance Rule 15(a)’s instruction to freely grant leave against Rule 16(b)’s instruction to not modify a scheduling order unless good cause is shown. Fed. R. Civ. P. 16(b); Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir.2009); Bensinger v. Denbury Res., Inc., No. 10-CV-1917, 2013 WL 3353975, at *3 (E.D.N.Y. July 3, 2013). The good-cause inquiry turns on whether the moving party was diligent. Holmes, 568 F.3d at 335; Morales v. Cnty. of Suffolk, 952 F.Supp.2d 433, 434-35 (E.D.NY.2013).

A. Rule 15 Analysis

Allen proposes a claim pursuant to § 301 of the LMRA, which provides a federal cause of action for breach of a CBA. 29 U.S.C. § 185; UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 697, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). There are two types of § 301 claims. A pure § 301 claim is one that simply alleges that the employer breached the CBA. Id. at 705 n. 7, 86 S.Ct. 1107. Before bringing a pure § 301 claim, a party must exhaust the grievance process required by the CBA. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Semper v. New York Methodist Hosp., 786 F.Supp.2d 566, 585 (E.D.NY.2011). A hybrid § 301 claim pairs a claim that the employer breached the CBA with a claim that the union’s breach of its duty to fairly represent the employee prevented the employee from exhausting the grievance process. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Carrion v. Enterprise Ass’n, 227 F.3d 29, 34 (2d Cir.2000). A hybrid § 301 claim thus provides an avenue for a party who has not exhausted the grievance process. DelCostello, 462 U.S. at 163-64, 103 S.Ct. 2281; Semper, 786 F.Supp.2d at 585. The nature of the claim, and not who is sued, determines whether a § 301 claim is considered pure or hybrid. Carrion, 227 F.3d at 34; Doyle v. United Airlines, Inc., 914 F.Supp.2d 325, 338 n. 6 (E.D.N.Y.2012).

Section 301 does not provide a statute of limitations, so courts have borrowed limitations periods from analogous claims. The differences between pure and hybrid § 301 claims have resulted in the borrowing of different limitations periods. In Hoosier, the Supreme Court concluded that the claim most analogous to a pure § 301 claim is breach of contract, reasoning that a pure § 301 claim “is essentially an action for damages caused by an alleged breach of an employer’s obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law.” 383 U.S. at 704-05 & n. 7, 86 S.Ct. 1107. The CBA at issue in Hoosier did not provide a grievance process for disputes. Reed v. United Transp. Union, 488 U.S. 319, 329 n. 5, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989); McKee v. Transco Prod., Inc., 874 F.2d 83, 88 (2d Cir.1989). In New York, the limitations period for breach-ofcontraet actions is six years. N.Y. C.P.L.R. § 213(2).

The Supreme Court distinguished hybrid § 301 claims in DelCostello, borrowing instead the six-month limitations period provided by § 10(b) of the National Labor Relations Act (“NLRA”), codified at 29 U.S.C. § 160, for claims of unfair labor practices. 462 U.S. at 171, 103 S.Ct. 2281. The court explained that a hybrid claim is “not a straightforward breach-of-contract suit under § 301, as was Hoosier, but a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under the collective-bargaining agreement.” Id. at 165, 103 S.Ct. 2281 (citations and quotations omitted). The Court reasoned that hybrid § 301 and unfair-labor-practices claims concern similar wrongdoing by unions and employers and that both concern a balancing between “the national interests in stable bargaining relationships and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective-bargaining system.” Id. at 170-71, 103 S.Ct. 2281 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 70-71, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring)).

Allen objects to Judge Reyes’s conclusion that his proposed § 301 claim is a “hybrid” § 301 claim that is subject to a six-month limitations period rather than a “pure” § 301 claim that is subject to a six-year limitations period. Pl.’s Objection at 4-7. He argues that DelCostello does not control here because he has alleged that his failure to exhaust the grievance process is excused not by his union’s failures, but by his employer’s repudiation of the grievance process, which is another basis for excusing a failure to exhaust. Vaca, 386 U.S. at 185, 87 S.Ct. 903 (“An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures.”); Abdelmesih v. Waldorf-Astoria, 149 L.R.R.M. 2937, 1995 WL 293634 at *3 (S.D.N.Y.1995) (stating that an employer’s repudiation of the grievance process is an exception to the exhaustion requirement). Allen primarily relies on three out-of-circuit cases, each concluding that a § 301 claim is pure if the failure to exhaust the grievance process is the result of an employer’s repudiation of the grievance process, rather than a union’s breach of its duty of fair representation. Cephas v. MVM, Inc., 520 F.3d 480 (D.C.Cir.2008); Cabarga Cruz v. Fundacion Educativa Ana G. Mendez, Inc., 822 F.2d 188 (1st Cir.1987); Garcia v. Eidal Int’l Corp., 808 F.2d 717 (10th Cir.1986).

Allen’s argument fails for a number of reasons. First, Allen did not present this argument or case law to Judge Reyes, so this Court need not consider it. A district court ordinarily will not consider new arguments, evidence, or case law that could have been but were not presented to the magistrate judge. Kruger v. Virgin Atlantic Airways, Ltd., No. 11-CV-2954, 976 F.Supp.2d 290, 295-96, 2013 WL 5502866, at *3 (E.D.N.Y. Sept. 30, 2013); Kennedy v. Adamo, No. 1:02CV01776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006). In his motion papers, Allen did no more than conclusorily state that he “intends to bring a ‘pure’ breach of contract suit under Section 301, as opposed to a ‘hybrid’ suit” and that New York’s six-year statute of limitations for breach of contract applies. Motion to Amend at 2 & n. 2; PL’s Reply at 2. He did not cite any of the out-of-circuit cases he now cites, nor did he argue that his case was distinguishable from DelCostello.

Second, he fails to account for controlling Second Circuit case law. The Second Circuit, applying DelCostello, has twice concluded that a § 301 claim is necessarily a hybrid claim if the CBA provides for a grievance process. United Auto., Aerospace & Agric. Implement Workers v. R.E. Dietz Co., 996 F.2d 592 (2d Cir.1993); McKee v. Transco Products, Inc., 874 F.2d 83 (2d Cir.1989). In McKee, two employees alleged they were terminated without cause, in violation of the CBA, and that the union did not adequately press their grievances. 874 F.2d at 84. The plaintiffs argued that DelCostello did not control their claim because their CBA did not require them to grieve their complaint. Id. at 87. The Court held that the defendant had adequately shown that the CBA did require plaintiffs to grieve their claim, and went on to explain that the existence of a grievance process distinguished the case from Hoosier: “Where an agreement has a private dispute resolution mechanism, an action for breach of that agreement is less analogous to a common law breach of contract action than was the agreement in Hoosier.” Id. at 88.

Dietz concerned a union’s claim that the employer had violated the CBA by refusing to pay employees for leftover vacation leave. 996 F.2d at 594. The employees had not pursued the grievance process because their employer said that it would not participate. Id. Invoking McKee, the Court explained that “the mere presence of an arbitration clause is sufficient to render an employee’s claim a hybrid claim and subject it to the six-month statute of limitations” and that the employer’s repudiation of the grievance process “does not affect the statute of limitations.” Id. at 596. The Court reasoned that the mere availability of a grievance process “implicates the federal interest in prompt, private dispute resolution in labor cases.” Id. at n. 2. Here, Allen’s allegations make clear that the CBA provided a grievance process. Proposed Am. Compl. at ¶¶ 56, 58-62. Under McKee and Dietz, his claim is thus hybrid, regardless of whether his employer prevented him from exhausting the grievance procedures.

And third, two of the three out-of-circuit cases that Allen relies upon are distinguishable because they involved only claims of employer wrongdoing and not claims of union wrongdoing. In Cabarga Cruz, the First Circuit held that a § 301 claim was pure where a failure to exhaust grievance procedures was excused by the employer’s repudiation of those procedures. 822 F.2d at 190-92. But this holding relied on the fact that the employer had “specifically withdrawn its assertion that the union handled Dr. Cabarga’s grievance improperly.” 822 F.2d at 192. In Cephas, the Circuit for the District of Columbia held that a claim that was not subject to a grievance process was a pure § 301 claim. 520 F.3d at 489. The Court reasoned that “Because Cephas’s claim could not have been processed through the grievance procedure in the CBA, it follows his case does not depend upon his union having breached its [duty of fair representation].” 520 F.3d at 489. Garcia is the one out-of-circuit case that is not distinguishable. In that case, the Tenth Circuit held that a § 301 claim was a pure one where the plaintiff alleged that his employer had unilaterally repudiated the grievance process and the union had acquiesced. Garcia, 808 F.2d at 721 (“A defendant employer should not be permitted to characterize as a ‘hybrid action’ what is essentially a contractual claim simply because the union has acquiesced in the breach.”). But, regardless of Garcia’s similarity to this case, the fact remains that Allen did not cite Garcia in his arguments to Judge Reyes and that binding Second Circuit case law compels the conclusion that Allen’s § 301 claim is hybrid.

As Judge Reyes correctly concluded that Allen’s proposed claim is hybrid, a six-month limitations period applies to the proposed claim. 29 U.S.C. § 160(b). Even if this Court presumes that the claim accrued in March 2010 (when Allen says he was fired) and that the claim relates back to Allen’s March 31, 2012, complaint, see Fed. R. Civ. P. 15(c), the claim is untimely. The claim is consequently futile. See Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000) (“Amendment would likely be futile if, for example, the claims the plaintiff sought to add would be barred by the applicable statute of limitations.”).

B. Rule 16 Analysis

Allen does not object to Judge Reyes’s conclusion that he failed to show good cause for the tardiness of his motion to amend the complaint, which he filed about eight months after the September 3, 2012, deadline had elapsed. R & R at 6-7.

Judge Reyes’s conclusion is not clearly erroneous. Allen did not in any of his motion papers acknowledge that the deadline for amending the complaint had passed, cite Rule 16(b), or argue that he had been diligent. Moreover, Allen knew of the factual basis ,for his proposed § 301 claim at the time those events transpired, long before the September 3, 2012, deadline. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340-41 (2d Cir.2000) (concluding that party wasn’t diligent where he knew of factual basis for claim before deadline); Enzymotec Ltd. v. NBTY, Inc., 754 F.Supp.2d 527, 536 (E.D.N.Y.2010) (“[T]he good cause standard is not satisfied when the proposed amendment rests on information ‘that the party knew, or should have known, in advance of the deadline.’ ”).

In sum, Judge Reyes did not clearly err in concluding that ■ Allen failed to show good cause under Rule 16(b).

CONCLUSION

For all of the foregoing reasons, the R & R is hereby adopted. Allen’s motion for leave to amend his complaint is DENIED.

SO ORDERED.

REPORT & RECOMMENDATION

RAMON E. REYES, JR., United States Magistrate Judge.

TO THE HONORABLE I. LEO GLASSER, SENIOR UNITED STATES DISTRICT JUDGE

Patrick Allen (“Plaintiff’) commenced this action in Kings County Supreme Court against United Parcel Service, Inc. (“Defendant”) on March 31, 2012, asserting claims under the New York City Human Rights Law (“NYCHRL”) and the New York State Human Rights Law (“NYSHRL”). (Dkt. No. 1.) Defendant removed the case to the Eastern District of New York on May 11, 2012. (Id.) Before this Court is Plaintiffs May 28, 2013 motion to amend the complaint to add a claim for violation of § 301 of the Labor Management Relations Act (“LMRA”), codified as 29 U.S.C. § 185. (Dkt. Nos. 17, 20.) Defendant filed its response and opposition on June 20, 2013. (Dkt. No. 23.) On June 25, 2013, Plaintiff filed an unauthorized surreply to this motion. (Dkt. No. 25.)

For the reasons that follow, I respectfully recommend that Plaintiffs motion to amend the complaint be denied.

BACKGROUND

Plaintiff was an employee of Defendant from 1993 through March 2010, subject to a collective bargaining agreement (“CBA”), and a member of Teamsters, Local Union 804 (“Union”) for the duration of his employment. (Dkt. No. 1 Compl. ¶¶ 6, 9.) On October 29, 2009, Plaintiff sustained an on-the-job injury resulting in a temporary disability, which he immediately reported to Defendant. (Id. ¶ 10.) Defendant then threatened to terminate Plaintiff, accused Plaintiff of faking the injury, placed Plaintiff on a “72 Hour Notice of Discharge for Attendance,” confiscated Plaintiffs employee identification, and walked Plaintiff off the premises. (Id. ¶¶ 11-12.) In March 2010, Plaintiff attempted to return to work, but was terminated because of his disability and inability to perform his job duties. (Id. ¶ 14.)

On July 5, 2012, this Court entered a scheduling order that set September 3, 2012 as the deadline to amend the pleadings. (Dkt. No. 9.) As per an extension of the original scheduling order, discovery closed on April 15, 2013. (Id.; Order dated 01/10/2013.) At the final pretrial conference on April 18, 2013, this Court granted Plaintiffs original counsel’s motion to withdraw because of an irreparable breakdown of the attorney-client relationship. (Minute Order dated 04/18/13.) Plaintiffs current counsel filed his appearance on May 17, 2013. (Dkt. Nos. 15, 16.) Plaintiff then moved to amend the complaint on May 28, 2013. (Dkt. No. 17.)

Plaintiffs proposed amendment to the complaint alleges that Defendant breached the CBA when it failed to provide Plaintiff seventy-two hours notice of discharge and assign a Union delegate to represent Plaintiff in any grievance hearing. (Dkt. No. 20 ¶¶ 56-65.) Plaintiffs proposed amendment further alleges termination from employment in March 2010, as well as the Union’s breach of the CBA “by failing to provide Plaintiff with fair representation even though Plaintiff pursued and attempted to engage the Union to represent him when he returned from leave in March 2010.” (Id. ¶¶ 60-61.)

DISCUSSION

A. Standards

Plaintiffs motion to amend the complaint is governed by Rule 15 of the Federal Rules of Civil Procedure, which provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “A Rule 15(a) motion for leave to amend may be denied for ‘undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.’” Pineda-Herrera v. Da-Ar-Da, Inc., No. 09-CV-5140 (RLM), 2011 WL 710447, at *1 (E.D.N.Y. Feb. 22, 2011) (quoting Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603 (2d Cir.2005)). But where, as here, a plaintiff seeks to amend the complaint after the deadline established by the scheduling order, “the lenient standard under Rule 15(a) ... must be balanced against the requirement under Rule 16(b) that the Court’s scheduling order shall not be modified except upon a showing of good cause.” Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir.2009) (citations and internal quotation marks omitted); Fed. R. Civ. P. 16(b)(4) (“[a] schedule may be modified only for good cause and with the judge’s consent”). A court must, therefore, “blend together” its Rule 15 and 16 analyses. Castro v. City of New York, No. 06-CV-2253 (RER), 2010 WL 889865, at *2 (E.D.N.Y. Mar. 6, 2010).

B. Application

Turning first to the futility prong, courts examine whether an amendment is futile under the standards governing a motion to dismiss. A plaintiffs “[a]mendment is futile if the proposed amended complaint could not survive a motion to dismiss.” Soroof Trading Dev. Co. v. GE Microgen, Inc., 283 F.R.D. 142, 149 (S.D.N.Y.2012) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). “[T]he court need not finally determine the merits of a proposed claim or defense, but merely satisfy itself that it is colorable and not frivolous.” Hall v. N. Bellmore Union Free Sch. Dist., No. 08-CV-1999 (JS)(ARL), 2010 WL 1049280, at *3 (E.D.N.Y. Mar. 18, 2010) (quoting Sumitomo Elec. Research Triangle, Inc. v. Coming Glass Works, 109 F.R.D. 627, 628 (S.D.N.Y.1986)). “Amendment would likely be futile if, for example, the claims the plaintiff sought to add would be barred by the applicable statute of limitations.” Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000).

Defendant correctly notes that Plaintiffs proposed amendment would assert a hybrid § 301/fair representation claim. (Dkt. No. 19.) See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169-70, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Carrion v. Enter. Trades Branch Local Union 638, 227 F.3d 29 (2d Cir.2000). Plaintiff seeks to amend his complaint to include a claim that Defendant, his former employer, breached the CBA. (Dkt. No. 20 ¶¶ 58-60, 62.) The proposed amendment also alleges that the Union breached its duty of fair representation and the CBA. (Id. ¶¶ 61-62.) Breaches of the CBA are governed-by § 301 of the LMRA. See DelCostello, 462 U.S. at 164, 103 S.Ct. 2281; Vaca v. Sipes, 386 U.S. 171, 183-84, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); White v. White Rose Food, 128 F.3d 110, 113 (2d Cir.1997). The Union’s duty of fair representation to Plaintiff is implied under the scheme of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169. See DelCostello, 462 U.S. at 164, 164 n. 14, 103 S.Ct. 2281; Carrion, 227 F.3d at 33.

In order to provide individual employees with recourse when a union breaches its duty of fair representation in a grievance or arbitration proceeding, the Supreme Court has held that an employee may bring suit against both the union and the employer ... Such suit, which alleges that the employer breached the CBA and that the union breached its duty of fair representation, is known as a hybrid § 301/fair representation claim.... The employee may sue the. employer, the union, or both ....

Carrion, 227 F.3d at 33 (citations omitted). Although Plaintiff is suing only his former employer, his proposed amendment includes allegations against both Defendant for breach of the CBA and the Union for breach of its duty of fair representation. (See generally Dkt. No. 20 ¶¶ 58-62.) The Court concludes, therefore, that under Carrion, Plaintiff seeks to bring a hybrid § 301/fair representation claim.

The statute of limitations for a hybrid § 301/fair representation claim is six months, see Carrion, 227 F.3d at 33, and “ ‘begins to run when the employee knew or should have known of the breach of the duty of fair representation.’ ” Id. at 34 (quoting White, 128 F.3d at 114). Plaintiff either knew or should have known that Defendant allegedly breached the CBA and the Union allegedly breached its duty of fair representation in March 2010, when Defendant terminated Plaintiff and Plaintiff sought to engage Union representation. The statute of limitations for this claim started to run by March 2010. Plaintiff did not, however, seek to assert this claim until May 2013, long after the six-month statute of limitations expired.

Although Plaintiffs LMRA claim arguably relates back to March 31, 2012, the date of the original complaint, see Fed. R. Crv. P. 15(c)(1)(B), Plaintiffs claim remains time-barred even under this earlier date. Because such a proposed claim is time-barred, it could not survive a motion to dismiss, fails to raise a colorable ground for relief, and is therefore futile. See Grace, 228 F.3d at 53. Based on futility alone, Plaintiffs motion to amend the complaint to add a time-barred hybrid § 301/ fair representation claim should be denied. See Ford v. Consol. Edison Co., No. 10-CV-4568 (SAS), 2011 WL 891325, at *3 (S.D.N.Y. Mar. 14, 2011) (denying Plaintiff leave to amend hybrid § 301/fair representation claim for futility under Rule 15(a) because claim was time-barred); see also Hull v. Beverage Distributs. Co., No. 11-CV-3287 (WJM)(KMT), 2013 WL 878768, at *7-8 (D.Colo. Feb. 14, 2013), adopted by, No. 11-CV-3287 (WJM)(KMT), 2013 WL 878777 (D.Colo. Mar. 8, 2013) (denying Plaintiff leave to amend hybrid § 301/fair representation claim under blended Rule 16(b) and Rule 15(a) analysis because claim was time-barred).

Although the Court need look no further than the futility analysis, I note that Plaintiff has also failed to show good cause for the delay. Plaintiff has failed to establish that the proposed amendment relies on information that Plaintiff did not or should not have known before the deadline to amend the pleadings set forth in the scheduling order. See Soroof Trading Dev. Co., 283 F.R.D. at 148; see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000). Additionally, the parties have not offered relevant evidence or argument as to the considerations of bad faith and dilatory motive. Finally, as to prejudice, Plaintiff contends that Defendant will suffer no prejudice, but Defendant only summarily claims that Plaintiff “has unduly delayed in seeking leave to file an amended complaint,” such that the Court concludes that Defendant would suffer no prejudice by the proposed amendment. See Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 284 (2d Cir.2000) (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993)). The balance of all the relevant factors in this blended analysis favor denying Plaintiff leave to file an amended complaint to add a hybrid § 301/ fair representation claim.

CONCLUSION

Based on all of the foregoing, I respectfully recommend that Plaintiffs motion to amend his complaint be denied in its entirety.

Any objections to this Report and Recommendation must be filed with the Clerk of the Court and the Honorable I. Leo Glasser within fourteen days of receipt hereof. Failure to file timely objections may waive the right to appeal the District Court’s Order. See 28 U.S.C. § 636(b)(1); Fed. R. Crv. P. 72; Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

Dated: October 25, 2013, Brooklyn, New York. 
      
      . Although Allen alleges that he was placed on a "72 hour Notice of Discharge for Attendance" on October 29, 2009, he also alleges that he was terminated on an unspecified date in March 2010, when he attempted to return to work after apparently being on leave while recovering from his injury. This conflict leads the parties to disagree about when the proposed claim accrued. Plaintiff's Objection ("PL’s Objection”) (Dkt. No. 32) at n. 1. The court doesn't resolve the dispute because the length of the applicable limitations period disposes of the timeliness of Allen's claim regardless of which accrual date is correct.
     
      
      . Allen also initially sought to add two claims under the Americans With Disabilities Act, but he abandoned those proposed claims during the pre-motion conference on June 26, 2013. R&Rat 1 n. 1.
     
      
      .Allen's allegations about the grievance process are confusing. He alleges that the CBA requires UPS to assign a union delegate for any grievance and conduct a hearing and arbitration, but it is unclear if a grievance must be filed before these duties are triggered, whose responsibility it is to file a grievance, and whether a grievance was filed here. Proposed Am. Compl. at ¶¶ 56, 58-60. He also alleges both that he did and did not receive 72 hours’ notice of his termination. Id. at ¶ 58.
     
      
      . In addition to the properly filed objection, Allen improperly filed a "Motion to Set Aside” the R & R. (Dkt. Nos. 27-31).
     
      
      . Allen presents such a different argument now that he refuses to even acknowledge his allegations that the union breached its duty of fair representation. In his objection, Allen says that he “is not alleging in his Proposed Second Amended Complaint that the Union acted in a discriminatory, arbitrary or bad faith manner.” PL's Objection at 5. But he alleges in his proposed amended complaint that "the Union breached its duty and the CBA by failing to provide Plaintiff with fair representation,” and case law defines fair representation as serving union members in good faith, and without discrimination, hostility, or arbitrariness. Proposed Am. Compl. at ¶¶ 61-62. DelCostello, 462 U.S. at 164 n. 14, 103 S.Ct. 2281.
     
      
      . As mentioned above, the parties dispute when Allen was actually terminated. Whether he was terminated in October 2009 or March 2010, it's clear that Allen knew of the basis for his § 301 claim before the deadline to amend his complaint elapsed.
     
      
      . Although Plaintiff's motion papers initially included a claim under the Americans with Disabilities Act ("ADA”), Plaintiff made clear at the June 26, 2013 premotion conference that he seeks to amend the complaint to add a claim under the LMRA only.
     
      
      . Allegations are taken from the initial complaint.
     
      
      . Such implication arises
      because it is the policy of the [NLRA] to allow a single labor organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the unit of the ability to bargain individually or to select a minority union as their representative.... [I]t must be the duty of the representative organization to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
      
        Carrion, 227 F.3d at 33 (quoting DelCostello, 462 U.S. at 164 n. 14, 103 S.Ct. 2281) (internal quotation marks omitted).
     
      
      . Even were the Court to construe Plaintiff’s claim as a pure § 301 claim, the proposed amendment should be denied- because such claim can be brought only by the union. See Carrion, 227 F.3d at 34 ("A pure § 301 action is a suit brought directly by a union against an employer to enforce the CBA ... Because the CBA is a contract between the union and the employer, the § 301 claim is for breach of that contract.” (citation omitted)).
     
      
      . In the context of its futility argument, Defendant does note that it "is unable to discern whether even a timely amendment would be ... in bad faith .... ” and that the "proposed amendment to the complaint ... also may be in bad faith.” (Dkt. No. 19.) Defendant’s statements, however, are more speculative than argumentative.
     