The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 DANNY MARSHALL, Case No. 24-cv-00996-JST
Plaintiff,
8
AMENDED ORDER GRANTING
9 v. DEFENDANTS’ MOTIONS TO
DISMISS
10 ALAMEDA CONTRA COSTA TRANSIT
DISTRICT, et al., Re: ECF Nos. 78, 79
11
Defendants.
12
13 Now before the Court are motions to dismiss and motions to strike the Fourth Amended
14 Complaint filed by the Defendants. ECF Nos. 78, 79. The Court will grant both motions.1
15 I. BACKGROUND
16 A. Factual Background
17 The factual background to this dispute is set out in more detail in the Court’s October 21,
18 2024 order partially dismissing the second amended complaint and the Court’s April 7, 2025 order
19 granting in part the motion for reconsideration and motion for leave to file a further amended
20 complaint. ECF Nos. 51, 70. In short, Plaintiff Danny Marshall alleges that his employer,
21 Alameda Contra Costa Transit District (“AC Transit”), and union, Amalgamated Transit Union,
22 Local 192 (“ATU Local 192”), demoted him in favor of a less qualified and less senior female
23 colleague, in part as retaliation for campaigning for the role of the head of the union against
24 Robert Coleman (who is also a Defendant). In his Fourth Amended Complaint (“4AC”) Marshall
25 includes a new Defendant, Michael Hursh, who was the former general manager of AC Transit.
26 ECF No. 71.
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1 The Court files an amended order and corrects two clerical errors noted by the parties to show
1 Marshall also includes additional allegations of age and race discrimination in the 2021 mentor
2 coordinator selection process.
3 B. Procedural Background
4 Marshall first filed this action in Alameda Superior Court on April 14, 2023. ECF No. 1,
5 Ex. A. On May 26, 2023, Marshall filed a first amended complaint (“FAC”), alleging that he was
6 improperly removed from AC Transit’s Mentor Coordinator position in 2021. See id., Ex. B. In
7 advance of Defendants’ responsive pleading deadline in Alameda Superior Court, Defendants met
8 and conferred with Marshall. Id., Ex. E ¶ 4. Following the conferral, the parties stipulated to
9 allow Marshall to amend his FAC, and Marshall dropped “the age discrimination theories asserted
10 in his FAC and did not plead any claims based on alleged age discrimination” in his second
11 amended complaint (“SAC”). ECF No. 64 at 4. Defendants removed the action to this Court
12 based on the federal law claims in the SAC, ECF No. 1. Defendants moved to dismiss all of
13 Marshall’s claims. ECF No. 8; ECF No. 9. On October 21, 2024, the Court granted in part and
14 denied in part ATU Local 192’s motion to dismiss Marshall’s complaint, including dismissing
15 Marshall’s breach of the duty of fair representation claim without leave to amend and dismissing
16 Marshall’s breach of contract claim with leave to amend. ECF No. 51 at 7–8, 10. On November
17 12, ATU Local 192 moved for leave to ask the Court to reconsider its granting of Marshall leave
18 to amend his breach of contract claim in light of dispositive legal arguments that ATU Local 192
19 presented to the Court in its briefing. See ECF No. 52 at 3–6. On November 18, Marshall filed
20 his third amended complaint as directed by the Court. See ECF No. 53. On November 20, the
21 Court granted ATU Local 192’s motion for leave to file a motion for reconsideration under Civil
22 Local Rule 7-9(b) and construed ATU Local 192’s filing at ECF No. 52 as that motion. ECF No.
23 54.
24 On April 7, 2025, the Court granted ATU Local 192’s motion for reconsideration and
25 partially granted Marshall’s motion for leave to further amend the complaint. ECF No. 70. The
26 Court agreed that Marshall’s breach of contract claim was entirely subsumed by the duty of fair
27 representation claim and dismissed the claim with leave to amend. Id. at 5–6. The Court
1 occurred after the complaint was filed when he was denied the mentor coordinator position in July
2 29, 2024 and to assert claims against AC Transit’s General Manager Michael Hursh. Id. at 7. The
3 Court denied Marshall leave to add the current ATU Local 192 president as a Defendant, finding
4 that amendment would be moot. Id. at 7. The Court also reminded Marshall that he may not bring
5 new claims based on conduct that occurred in 2021. Id. at 6.
6 Marshall filed a new complaint on April 28, 2025. Defendants moved to dismiss the
7 complaint on June 18, 2025. Marshall opposed both motions on October 22, 2025. Defendants
8 filed their replies on November 26, 2025.
9 II. JURISDICTION
10 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.
11 III. LEGAL STANDARD
12 A complaint must contain “a short and plain statement of the claim showing that the
13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Dismissal under Rule 12(b)(6) is
14 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support
15 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
16 Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a
17 plaintiff “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
18 Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain
19 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). “A claim has
21 facial plausibility when the plaintiff pleads factual content that allows the court to draw the
22 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court must
23 “accept all factual allegations in the complaint as true and construe the pleadings in the light most
24 favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
25 However, the Court is not “required to accept as true allegations that are merely
26 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec.
27 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quotation marks and citation omitted). When
1 deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th
2 Cir. 1995).
3 Pursuant to Rule 12(f), a court “may order stricken from any pleading any insufficient
4 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
5 12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that
6 must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .”
7 Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).
8 Motions to strike are “generally not granted unless it is clear that the matter sought to be
9 stricken could have no possible bearing on the subject matter of the litigation.” Rosales v.
10 Citibank, Federal Sav. Bank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001). Any doubt
11 concerning the import of the allegations to be stricken weighs in favor of denying the motion to
12 strike. See In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).
13 IV. DISCUSSION
14 A. Claims Against AC Transit
15 To state a claim for relief under Section 1983, a plaintiff must allege two elements: (1) that
16 a right secured by the Constitution or laws of the United States was violated; and (2) that the
17 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
18 42, 48 (1988). Marshall charges AC Transit with Section 1983 violations for interfering with his
19 rights under the First and Fourteenth Amendments. 4AC at 12–14. AC Transit argues that
20 Marshall has once again failed to adequately allege a constitutional violation. ECF No. 8 at 11.
21 1. First Amendment
22 Marshall pleads that he was demoted in violation of the First Amendment as retaliation for
23 a speech he made in a campaign against ATU Local 192 President Robert Coleman. In charging
24 the First Amendment violation, he claims that he “suffered adverse employment action due to his
25 engaging in protected speech, by campaigning to unseat the former ATU Local 192 President,
26 Robert Coleman, in an election held by the union” and that policy decisions about employment
27 “are presumably at the General Manager level with ratification by the AC Transit governing
1 collectively decided or affirmed the decision to remove Marshall from his role.
2 “A First Amendment retaliation claim against a government employer involves a
3 sequential five-step series of questions:
4 (1) whether the plaintiff spoke on a matter of public concern; (2)
whether the plaintiff spoke as a private citizen or public employee;
5 (3) whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action; (4) whether the
6 state had an adequate justification for treating the employee
differently from other members of the general public; and (5)
7 whether the state would have taken the adverse employment action
even absent the protected speech.”
8
9 Desrochers v. City of San Bernardino, 572 F.3d 703, 708–09 (9th Cir. 2009) (quoting Eng v.
10 Cooley, 552 F.3d 1062, 1070 (9th Cir.2009)). AC Transit argues that Marshall has failed to allege
11 that his speeches touched on a matter of public concern or that the speeches were a substantial or
12 motivating factor in the adverse employment decision taken by Hursh or AC Transit. ECF No. 78
13 at 17. In opposition, Marshall alleges that the protected speech he is referencing included his
14 speaking out about his removal from the mentor coordinator position and requests to pursue a
15 grievance regarding his removal from the coordinator position. ECF No. 89 at 9. These
16 allegations, however, are absent from the complaint, which references only his speeches
17 concerning the union. 4AC at 12–13. Thus, the Court cannot consider them. 578539 B.C., Ltd. v.
18 Kortz, No. CV1404375MMMMANX, 2015 WL 12670488, at *14 (C.D. Cal. Apr. 10, 2015) (“In
19 any event, the court cannot consider facts argued in Kortz's opposition but not alleged in the
20 complaint in deciding Maico's motion to dismiss.”). Moreover, even if these statements had been
21 included in the complaint, “speech that deals with individual personnel disputes and grievances
22 and that would be of no relevance to the public’s evaluation of the performance of governmental
23 agencies is generally not of public concern.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th
24 Cir. 2003) (citation modified). Therefore, Marshall’s statements following his removal would not
25 support a First Amendment claim.
26 Marshall also fails to plead a violation of the First Amendment because he does not
27 identify a protected statement that AC Transit was alleged to have known or considered in
1 speeches, Marshall makes no firm allegation that AC Transit or Hursh was aware of or made the
2 decision to remove him from his role due to his speech. Marshall only offers instead that any
3 decision about employee speech or protected activity were “presumably” made by the general
4 manager and ratified by the board. Id. In short, Marshall has not alleged any public statements
5 made by him that were a substantial or motivating factor in AC Transit or Hursh’s decisions to
6 remove him, and so fails to plead a First Amendment claim.
7 2. Fourteenth Amendment
8 Marshall also fails to plead a violation of the Fourteenth Amendment as he is unable to
9 identify a property interest he was legitimately entitled to. “A procedural due process claim has
10 two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest,
11 and (2) a denial of adequate procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified
12 Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Marshall claims that he was denied due process
13 under the Fourteenth Amendment when AC Transit demoted him and replaced him with a woman
14 with less seniority and skill due to his gender and in retaliation for his campaigning against
15 Coleman in union elections. 4AC at 13. However, Marshall fails to allege an agreement,
16 regulation, state law, or other source granting him a property interest in the Mentor Coordinator
17 position. See Blantz v. California Dept. of Corr. and Rehab, 727 F.3d 917, 924 (9th Cir. 2013)
18 (“There must be some source, recognized under state law, for [plaintiff’s] claimed entitlement to
19 her position, not merely her unilateral expectation that it would continue.” (emphasis in original)).
20 As he has in prior pleadings, Marshall again claims that the Collective Bargaining Agreement
21 (“CBA”) was violated when his position was reassigned, but identifies no CBA provision that
22 would support such a claim. 4AC at 13–14. The portions of the CBA Marshall quotes deal with
23 termination, discipline and the selection process for the Mentor Coordinator job, but none
24 guarantees that an employee could hold the position indefinitely or otherwise suggests that
25 someone losing the position is entitled to process that Marshall did not receive. Id. Accordingly,
26 he has failed to allege a violation of his Fourteenth Amendment rights. See Wedges/Ledges of
27 Cal., Inc. v. City of Phx., Ariz., 24 F.3d 56, 62 (9th Cir. 1994) (“A threshold requirement to a
1 interest protected by the Constitution.”). The Court therefore dismisses this claim.
2 B. Claims Against Michael Hursh
3 AC Transit moves to dismiss all claims against Defendant Michael Hursh, the former
4 general manager for AC Transit. AC Transit argues that “[w]hile the 4AC identifies Hursh as a
5 defendant, it does not allege any claims or causes of action against Hursh,” because the headings
6 for each of Marshal’s causes of action name only other defendants and because he is not alleged to
7 have personally participated in the decisions affecting Marshall. ECF No. 78 at 14. AC Transit
8 also argues that that Hursh is entitled to qualified immunity for any claim that the complaint could
9 be construed to allege against him. Id. at 15. Marshall responds that he has adequately alleged in
10 his complaint that Hursh was liable under Section 1983 for violations of the First and Fourteenth
11 Amendments. His only response on the topic of qualified immunity is a header that states “The
12 Existence of Any Qualified Immunity Goes to the Issues of Individual Liability and Damages, Not
13 to Michael Hursh’s Role as Defendant AC Transit’s Highest Ranking Decision Maker” without
14 further argument. ECF No. 89 at 6–7.
15 The Court agrees that Marshall has failed to allege any cause of action against Hursh. The
16 Section 1983 causes of action are made against only government entity defendants. The complaint
17 defines “entity defendants as AC Transit and ATU Local 192.” 4AC at 1. To comply with Rule
18 8, a plaintiff must link each defendant to specific instances of unlawful conduct. Witherbee v. Dan
19 Dow, 222CV2027MWFMAR, 2022 WL 2964382, at *2 (C.D. Cal. June 15, 2022) (citing Est. of
20 Bock ex rel. Bock v. Cnty. of Sutter, No. 2:11-CV-00536-MCE, 2012 WL 423704, at *6 (E.D. Cal.
21 Feb. 8, 2012)). “Where a plaintiff sues multiple defendants and fails to specify which conduct is
22 attributable to which defendant, it is subject to dismissal for failure to comply with Rule 8.”
23 Sherrell v. Bank of Am., N.A., No. CV 11-1785-LJO (JLT), 2011 WL 6749765, at *4 (E.D. Cal.
24 Dec. 22, 2011). The Court therefore dismisses Michael Hursh as a defendant without reaching the
25 question of qualified immunity.
26 C. Claims Against ATU Local 192
27 ATU Local 192 argues that Marshall’s amended breach of contract claim merely advances
1 representation claim. ECF No. 79 at 12 (citing ECF No. 70 at 5). ATU Local 192 reiterates that
2 the only agreement that was allegedly breached was the CBA, which cannot support a standalone
3 breach of contact claim. In his opposition, Marshall restates the same arguments the Court has
4 already rejected in granting ATU Local 192’s motion for reconsideration. ECF No. 88 at 5
5 (“Plaintiff briefed this issue in some detail in his response to Local 192’s request for
6 reconsideration (ECF-57), which Plaintiff brings to the Court’s attention again when ruling on
7 Defendant ATU Local 192’s and Mr. Coleman’s currently pending motion.”). Once again,
8 Marshall does not allege that any other contract other than the collective bargaining agreement
9 was at issue. Id. at 6–7.
10 The Court agrees with ATU Local 192. Marshall’s breach of contract allegations refer
11 exclusively to the collective bargaining agreement. See 4AC at 18 (“In every contract or
12 agreement there is an implied promise of good faith and fair dealing, which means that Defendant
13 ATU Local 192 was not to do anything to unfairly interfere with the right of Plaintiff to receive
14 the benefits of the contract-negotiated on this behalf.”). And, as the Court has already found,
15 Giffin v. United Transp. Union, 190 Cal. App. 3d 1359 (1987) stands for the proposition that
16 breach of contract claims against a union based on the violation of a collective bargaining
17 agreement are treated as duty of fair representation claims under California law. ECF No. 70 at 5–
18 6 (citing Giffin, 190 Cal. App. 3d at 1362). Therefore, the Court will dismiss Marshall’s breach of
19 contract claim.
20 D. Claims Against Robert Coleman
21 As with Defendant Michael Hursh, Marshall fails to specify any causes of actions against
22 Defendant Robert Coleman, the former president of ATU Local 192. In the SAC, the only cause
23 of action that Marshall alleged against Coleman was the “breach of contract” claim—which the
24 Court found was subsumed under the duty of fair representation claim. The 4AC does not even
25 make this allegation against Coleman. Marshall’s only opposition is that dismissal of Coleman
26 would be premature before the close of pleadings. ECF No. 88 at 9.
27 As the Court found with Defendant Hursh, Marshall’s failure to specify which causes of
1 found in denying Marshall’s motion for leave to add current union present LaTrina Meredith,
2 “union officers and employees are not individually liable to third parties for acts performed as
3 representatives of the union in the collective bargaining process.” ECF No. 70 at 6 (quoting
4 Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985)).
5 E. Motions to Strike
6 Defendants AC Transit and ATU Local 192 move to strike allegations in the 4AC that
7 reference age discrimination claims about the 2021 mentor coordinator recruiting position.
8 Defendants argue that these allegations violate the Court’s previous order that denied Marshall
9 leave to include additional claims concerning the 2021 recruitment process. ECF No. 70 at 6–7.
10 In opposition to AC Transit’s motion to strike, Marshall does not address the Court’s prior order,
11 arguing only Marshall “labored to set forth the facts common to all of his claims in a single
12 section of his 4AC, and … there are no immaterial, impertinent, or scandalous matters in the
13 4AC.” ECF No. 89 at 5. In opposition to ATU Local 192’s request, Marshall contends that he did
14 remove the age discrimination claims based on the 2021 recruitment process and that ATU Local
15 192’s motion was unnecessary. ECF No 88 at 4. He claims that facts about the 2021 process are
16 set out as factual predicates of the age and retaliation claims about the 2024 mentor coordinator
17 position. ECF No. 88 at 8.
18 The Court’s order on the motion for reconsideration prohibited Marshall from reviving
19 discrimination and retaliation claims from the 2021 mentor coordinator process. While this did
20 not prohibit all claims arising from the 2021 mentor coordinator process, it does apply to all age
21 discrimination and retaliation allegations relating to the 2021 process. In contravention of that
22 order, the complaint plainly includes allegations of age discrimination based on the 2021 process.
23 See 4AC at 15:
24 Plaintiff’s age was a substantial motivating factor in AC Transit’s
agents’ and employees’ removing him from the position of Mentor
25 Coordinator and instead putting a less senior female coworker, [Ms.
Frost] into the position. Ms. Frost was not capable of assuming the
26 position for the next five months, during which time Plaintiff himself
performed the duties of Mentor Coordinator. Plaintiff’s age was also
27 a substantial motivating factor in ATU Local 192’s interference with
non-discrimination provisions. . . .
2 || The complaint also references gender discrimination claims based on the 2021 process. See 4AC
3 at 16:
Plaintiff's gender and age as well as retaliation for his campaigning
4 against Robert Coleman were substantial motivating factors in ATU
Local 192’s and AC Transit’s agents’ and employees’ removing him
5 from the position of Mentor Coordinator and instead putting a less
qualified, female co-worker [Ms. Frost] into the position. Ms. Frost
6 was not capable of assuming the position for the next five months,
during which time Plaintiff himself performed the duties of Mentor
7 Coordinator.
8
Both of these claims reference Ms. Frost, the person who replaced Marshall in the mentor
9
coordinator role in 2021. This is clearly within the scope of the Court’s prohibition against
10
pleading claims related to the 2021 mentor coordinator process Marshall previously abandoned
1]
following discussion with the Defendants. The Court will grant Defendants’ motions to strike.
a 12
CONCLUSION
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The Court dismisses the Section 1983 and breach of contract claims against all Defendants
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and dismisses Defendants Coleman and Hursh. Given Plaintiff's numerous opportunities to
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3 amend, the Court concludes that amendment would be futile and dismissal on these claims and
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Defendants is with prejudice. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir.
vo
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2010). As the Court held in its previous order, Marshall may pursue the FEHA discrimination,
Z 18
retaliation, and failure to prevent discrimination claims against AC Transit and ATU Local 192.
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ECF No. 51 at 8-9. Marshall may also proceed with his Age Discrimination in Employment
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Act (ADEA) claims against both Defendants. ECF No. 71 at 12. Marshall may only proceed on
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age discrimination claims based on the 2024 mentor coordinator recruiting process.
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23 ®
Dated: March 13, 2026
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25 JON S. TIGA
nited States District Judge
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