Case 3:16-cv-02660-BAS-AGS Document 34-1 Filed 10/12/17 … · 2018. 10. 2. · 21 Gemtel Corp. v. Community Redevelopment Agency, 22 23 F.3d 1542 (9th Cir. 1994) 1 23 Gila River

Kristin L. Martin, SBN 20652$Yonina Alexander, SBN 284908McCRACKEN, STEMERMAN & HOLSBERRY, LLP595 Market Street, Suite $00San Francisco, CA 94105Tel: 415-597-7200Fax: 415-597-7201Email: [email protected]

Attorneys for DefendantUNITE HERE International Union

PAUMA BAND OF LUISENOMISSION INDIANS OF THEPAUMA AND YUIMARESERVATION, a/k/a PAUMABAND OF MISSION INDIANS, afederally-recognized Indian Tribe,

Plaintiff,

UNITE HERE INTERNATIONALUNION; STATE OF CALIFORNIA;and EDMUND G. BROWN, JR., asGovernor of the State of California,

Defendants.

CASE NO. 1 6-cv-2660-BAS-JLB

MEMORANDUM OF LAW INSUPPORT OF UNITE HERE’SMOTION TO DISMISS SECONDAMENDED COMPLAINT OR, INTHE ALTERNATIVE, TO STRIKEALLEGATIONS

[Fed. R. Civ. P. 12(b)(1), (6) and (I)]

Date: December 11,2017

No Oral Argument Unless Requestedby the Court

Hon. Cynthia BashantN/A

Action Filed: 10/27/20 16

ll THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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MEMORANDUM Of LAW TN SUPPORT Of U1’JITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE I 6-cv-2660-BAS-JLB

Case 3:16-cv-02660-BAS-AGS Document 34-1 Filed 10/12/17 PageID.1504 Page 1 of 33

1 TABLE OF CONTENTS

2 RELEVANT COMPLAINT ALLEGATIONS 1

3 SUMMARY OF ARGUMENT 3

4 ARGUMENT 4

5 A. This case is an improper collateral attack on NLRB proceedings 4

6 B. This Court lacks subject-matter jurisdiction 6

7 1. Pauma’s claims do not arise under IGRA 6

8 a. Pauma’ s claims that the Union breached the TLRO do not arise

9 under IGRA 7

10 b. Pauma’s claims against the State do not create jurisdiction

11 because Pauma’s dispute is with the Union 9

12 2. There is no other basis for federal jurisdiction 11

13 3. The Court should not exercise supplemental jurisdiction over Pauma’s

14 contract claims against UNITE FIERE 12

15 C. The TLRO does not waive the Union’s statutory right to file NLRB

16 charges 12

17 1. The TLRO requirement that “all issues” be resolved by arbitration is

1$ not a clear and unmistakable waiver 12

19 2. The Union did not have any NLRA rights to waive when the TLRO

20 was negotiated 15

21 3. The Union did not waive its NLRA rights by filing an amicus brief in

22 the Coyote Valley Band case 15

23 a. Background 16

24 b. Exhibit 31 to the SAC 17

25 c. Exhibit 32 to the SAC 18

26 D. Pauma’s claim that the Union breached the TLRO is subject to the

27 TLRO’s dispute resolution procedures 19

281

MEMORANDUM OF LAW EN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 E. The Court has discretion to dismiss the declaratory relief claim 20

2 F. If the Court does not dismiss the SAC, it should strike redundant,

3 immaterial and impertinent allegations or excuse the Union from

4 answering them 21

5 CONCLUSION 23

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MEMORANDUM OF LAW IN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE 1 6-cv-2660-BAS-JLB


1 TABLE OF AUTHORITIES

2 Page(s)

Cases4

14 Penn Plaza v. Pyett,556U.S.247(2009) 14

6Albino v. Baca,

7 747 F.3d 1162 (9th Cir. 2014) (en banc) 19

8Bell v. Hood,

9 327U.S.678(1946) 9

10 Bratten v. 881 Servs., Inc.,11 185F.3d625(6thCir.1999) 14

12 Cabazon Band ofMission Indians v. Wilson,13 124 F.3d 1050 (9th Cir. 1997) 7, 8, 12, 21

14 Cafasso v. General Dynamics C4 Sys., Inc.,

15 637F.3d 1047(9thCir. 2011) 21

16 Carter v. Rent-A-Ctr., Inc.,

17 2015 WL 4773547 (D. Nev. Aug. 13, 2015) 19

18 Casino Pauma,

19 362NLRBNo.52(March3l,2015) 1

20 Casino Pauma,

21 363 NLRB No. 60 (December 3, 2015) 1

22 Cavallaro v. UMass Memorial Hosp.,

23678 F.3d 1(1st Cir. 2012) 14

24 Columbia Cas. Co. v. Cottage Health Sys.,

252015 WL 4497730 (C.D. Cal. July 17, 2015) 19

26 Confederated Tribes ofSiletz Indians v. Oregon,143 F.3d 481 (9th Cir. 199$) 13

27

28111

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE 16-cv-2660-BAS-JLB


1 Corey v. New York Stock Exchange,

2691 f.2d 1205 (6th Cir. 1982) 6

Do/ce v. United California Bank,702 F.2d 17$ (9th Cir. 1983) 10

4Doyle v. Raley ‘S Inc.,

15$ F.3d 1012 (9th Cir. 199$) 13,14, 156

Eastern Assoc. Coal Corp. v. Massey,373 f.3d530 (4thCir. 2004) 14

8Exxon Shipping Co. v. Airport Depot Diner, Inc.,

120F.3d166(9thCir. 1997) 20

10Falibrook Hosp. Corp. v. Cal. Nurses Ass ‘n,

11 652Fed.Appx. 545 (9thCir. 2016) 12, 13, 17

12Fantasy, Inc. v. Fogerty,

13 984 F.2d 1524 (9th Cir. 1993), rev ‘don other grounds by 510 U.S. 517

14 (1994) 22

15 FlascoMfg. Co.,

16 162NLRB611(1967) 13

17 G. C. & K.B. Investments, Inc. v. Wilson,326F.3d 1096(9thCir. 2003) 11

19 Garanti Finansal Kiralama v. Aqua Marine & Trading Inc.,

20697F.3d59(2dCir.2012) 10

21 Gemtel Corp. v. Community Redevelopment Agency,

2223 F.3d 1542 (9th Cir. 1994) 1

23 Gila River Indian Community v. Henningson, Durham & Richardson,626 F.2d 708 (9th Cir. 1980) 6, $

24

25 Hearns v. San Bernadino Police Dept.,530 F.3d 1124 (9th Cir. 200$) 21

26

27 Hem v. Capitan Grande Band ofDiegeno Mission Indians,201 F.3d 1256 (9th Cir. 2000) 7

2$lv

MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE 16-cv-266O.BAS-JLB


1 Herman Family Revocable Trust v. Teddy Bear,254 F.3d 802 (9th Cir. 2001) 12

2Hospital ofBarstow, Inc. v. Cal. Nurses Ass ‘ii,

2013 WL 4590973 (C.D. Cal. Aug. 26. 2013) 13, 184

Hospital ofBarstow, Inc. v. Cal. Nurses Ass ‘n,2013 WL 6095559 (C.D. Cal. Nov. 18, 2013) 5

6Huth v. Hartford Ins. Co. of the Midwest,

298 F.3d 800 (9th Cir. 2002) 208

Ibarra v. UPS,695 f.3d354 (SthCir. 2012) 14,15

10In re Indian Gaming Related Cases,

11 331 F.3d 1094 (9thCir. 2003) 1, 16

12Inlandboatmens’ Union ofthe Pacific v Dutra Group,

13 279 f.3d 1075 (9th Cir. 2002) 19

14Jones v. San Diego Metropolitan Transit Sys.,

15 2015 WL4873013 13,4

16 Lawrence v. Sol G. Atlas Real Co., Inc.,17 841 F.3d81 (2dCir.2016) 4

18 Littell v. Nakai,19 344F.2d486(9thCir. 1965) 8,9

20 Local 743 IAMv. UnitedAircraft Corp.,

21 337 F.2d 5 (2d Cir. 1964) 12

22 Martinez v. I Fletcher Creamer & Son, Inc.,

23 2010 WL 3359372 (C.D. Cal. Aug. 13, 2010) 14, 15

24 Mastro Plastics Corp. v. NLRB,

25 350U.S.270(1956) 13

26 Matsuo Yoshida v. Liberty Mutual Ins. Co.,

27 240 F.2d 824 (9th Cir. 1957) 15

28V




1 McCauley v. Ford Motor Co.,

2264F.3d952 (9th Cir. 2001) .6

McHemy v. Renne,84F.3d 1172 (9thCir. 1996) 21

4

5Metropolitan Edison Co. v. NLRB,

460 U.S. 693 (1983) 136

Morongo Band v. Cal. St. Bd. ofEqual.,858 F.2d 1376 (9th Cir. 1988) 6, 8, 11

$Moses H Cone Memorial Hosp. v. Mercury Constr. Corp.,

460 U.S. 1(1983) 1110

Nash v. Florida Industrial Comm ‘n.,389 U.S.235 (1967) 13

12NLRB v. C&C Pljvood Co.,

13 385 U.S. 421 (1967) 5

14NLRB v. Pueblo ofSan Juan v. NLRB.,

15 280F.3d 1278 (l0thCir. 2000) 18

16 No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America17 West Holding Corp.,

1$ 320F.3d920 (9th Cir. 2003) 1

19 Northern Cal. Dist. Council ofLaborers v. Pittsburg—Des Moines Steel Co.,

2069 F.3d 1034 (9th Cir. 1995) 13

21 Principal Life Ins. Co. v. Robinson,394 F.3d 665 (9th Cir. 2005) 20

22

23 Queen of Valley Hosp.,316NLRB 721 (1995) 13

24

25 Rodriguez v. Donovan,769 F.2d 1344 (9th Cir. 1985) 9

26

27 Rosen v. NLRB,735 F.2d564 (D.C. Cir. 1984) 4

2$vi

MEMORANDUM OF LAW TN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 San Manuel Indian Bingo & Casino,

2341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir. 2007).15, 17

Sander v. Weyerhaeuser Co.,966 f.2d 501 (9th Cir. 1992) 4

4Sanford v. Memberworks, Inc.,

625 F.3d 550 (9th Cir. 2010) 126

Scotts Co. v. Seeds, Inc.,688F.3d1154(9thCir.2012) 10

8Skelly Oil Co. v. Phillips Petroleum Co.,

339U.S.667(1950) 1110

Sliger v. Prospect Mortg.,11 789 F.Supp.2d 1212 (E.D. Cal. 2011) 22

12Smith Steel Workers v. A. 0. Smith Corp.,

13 420 F.2d 1(7th Cir. 1969) 4, 5

14Steel Co. v. Citizens for a Better Env ‘t,

15 523 U.S. 83 (1998) 9, 13

16 Stock West, Inc. v. Confederated Tribes,17 873 F.2d 1221 (9thCir. 1989) 6,8,11

18 Tamiami Partners v. Miccosukee Tribe ofIndians,19 63 F.3d 1030 (11th Cir. 1995) 7

20 UNITE HERE v. Pala Band ofMission Indians,

21 583 F.Supp.2d 1190 (S.D. Cal. 2008) 8

22 United Ass ‘n ofJourneymen v. Valley Engineers,

23 975 F.2d611 (9thCir. 1992) 4

24 Wawock v. CSI Electrical Contractors, Inc.,

25 649 Fed. Appx. 556 (9th Cir. May 5, 2016) 14

26 Wilton v. Seven Falls Co.,

27 515 U.S. 277 (1995) 20

28vii

MEMORANDUM Of LAW IN SUPPORT OF U1’IITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, [N THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 Wisconsin v. Ho-Chunk Nation,512 F.3d921 (7th Cir. 200$) $

2Wright v. Universal Maritime $vc. Corp.,

525 U.S. 70(1998) 13, 14, 15, 164

Statutes

6 9U.S.C.1 11

7 25 U.S.C. § 2701 1

825U.S.C.2710(d)(1)(C) 1

9

1025U.S.C.2710(d)(3)(A) 7

11 25U.S.C.2710(d)(3)(B) 7

12 25 U.S.C. § 2710(d)(3)(C) 7

13 25 U.S.C. § 2510(d)(7) 714

28 U.S.C. § 1331 6,11

16 28U.S.C.1359 9

17 28U.S.C.1362 6

18 28 U.S.C. § 1367(c)(3) 12

1928U.S.C.2201 11

20

21 29 U.S.C. § 158 15

22 Other Authorities

23 U.S. Constitution, Art. I, § 8, Cl. 3 6, 11

24Fed. R. App. P. 16(a) 21

25

26Fed. R. Civ. P. $ 18, 19

27 Fed. R. Civ. P. 8(a) 6

28viii

MEMORANDUM Of LAW TN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 Fed. R. Civ. P. 8(a)(2) .21

2 Fed. R. Civ. P. 8(d)(1) 21

Fed. R. Evid. 408 114

15 Moore’s Fed. Frac. § 102.19[1J, at 102-54 (3d ed. 2016) 105

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MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



i RELEVANT COMPLAINT ALLEGATIONS

2 The Second Amended Complaint’s length is deceptive, as the legal theory and th

3 fact allegations necessary to support that theory are very simple. The Indian Gaming

4 Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”), permits tribes to engage in some

5 forms of gaming only if “conducted in conformance with a Tribal-State compact

6 entered into by the Indian tribe and the State. .. .“ 25 U.S.C. § 2710(d)(1)(C). In

7 2000, the Pauma Band of Luiseno Mission Indians (“Pauma”) and California entered

$ into an IGRA compact governing a future casino on Pauma’s reservation (“Compact”).

9 Second Amended Complaint (“SAC”), ¶ 114. In the Compact, Pauma agreed to adopt

10 model Tribal Labor Relations Ordinance (“TLRO”) that is an exhibit to the Compact.

11 SAC ¶ 2 n.1, Exh. 1 (pp. 36, 49-61). The TLRO was a proper subject for IGRA

12 compact negotiations. In re Indian GamingRelated Cases, 331 F.3d 1094, 1156-16

13 (9th Cir. 2003).

14 In 2001, Paurna began operating a casino on its reservation. SAC ¶ 116.

15 Defendant UNITE HERE (“Union”) is a labor organization that represents service-

16 industry workers. SAC ¶ 15. Since April 2013, the Union has filed ten unfair labor

17 practice charges with the National Labor Relations Board (“NLRB”), each alleging

18 that Pauma violated federal labor law. SAC ¶J 157, 181 & Exhs. 24, 27. The NLRB

19 has already adjudicated five of those charges and found that Pauma violated the law.

20 See Casino Pa;tma, 363 NLRB No. 60 (December 3, 2015) (charge nos. 2 1-CA-

21 125450, 126528, and 131428); Casino Pauma, 362 NLRB No. 52 (March 31, 2015)

22 (charge nos. 21-CA-103026 and 114433); Martin Dec. ¶ 2-3, Exhs. A, B.1 Pauma

23On a motion to dismiss, the Court may consider documents that are a matter of public

24 record, form the basis of the plaintiffs claim, are subject to judicial notice or are25 referenced in the complaint. No. 84 Employer-Teamster Joint Council Pension Trust

26Fundv. America West Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003); UnitedStates v. Ritchie, 342 F.3d 903, 908—09 (9th Cir. 2003); Gemtel Corp. v. Community

27 Redevelopment Agency, 23 F.3d 1542, 1544 n.y (9th Cir. 1994). The documents

28 attached to the Martin Declaration meet this standard.1

MEMORANDUM OF LAW IN SUPPORT OF UN[TE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 complied with the March 2015 order, but sought review of the December 2015 order.

2 That petition for review is pending in the Ninth Circuit and scheduled for oral

3 argument on November 11, 2017. SAC ¶ 160; Martin Dec. ¶ 5, Exh. D. An

4 administrative law judge issued a decision on a sixth charge, and Pauma has appealed

5 that decision to the NLRB. SAC ¶J 161, 256; Martin Dec. ¶ 4, Exh. C. One charge

6 was just filed on December 12, 2016, and has not yet been adjudicated. SAC ¶ 9,

7 263. The others were withdrawn before prosecution. SAC ¶J 221, 242, 249.

$ The TLRO contains a dispute resolution procedure that includes arbitration.

9 SAC ¶J 82, 84 & Exh. 1 (p. 59-60). Pauma contends that the TLRO’s arbitration

10 clause operates to waive the Union’s right to file NLRB charges, and the Union

11 violated that waiver. SAC ¶ 13, 157, 194. Pauma recognizes that it cannot contract

12 with California to waive unions’ federal-law rights, so Pauma says that the Union is a

13 party to the Compact or at least to the Compact’s TLRO. The Union is not named in

14 the Compact arid did not sign the Compact, but Pauma posits that the Union’s role in

15 pressing California to negotiate for labor organizing rights and participation in

16 negotiations over the TLRO converted the Union from an interest group lobbying the

17 government into a contracting party. SAC ¶ 171 & Exh. 1.

18 This two-pronged theory — that the Union is a party to the TLRO and the Union

19 waived its right to file NLRB charges — is the basis for each of the fourteen causes of

20 action. The first cause of action seeks a declaration “that the Union has contracted

21 away or otherwise waived its right to litigate such work related issues before the

22 NLRB.” SAC ¶ 194 & Prayer for Re1iefJ 1. The second through eleventh causes of

23 action each allege that the Union breached the TLRO by filing an NLRB charge, and

24 seek damages as the remedy.2 SAC ¶J 195-264. The twelfth cause of action seeks an

252 In its zeal to pad the complaint, Pauma disregarded the fact that the charges alleged in

26 the fifth and sixth causes of action are identical. The Union filed the charge once, but27 the NLRB docketed it twice. One of those charges was then withdrawn. See SAC ¶J28 221,228 &Exh.24.

2MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECOND

AMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONSCASE I 6-cv-2660-BAS-JLB


1 order of specific performance to prevent the Union from “continuing to breach the

2 1999 Compact by insisting on litigating work related disputes with the NLRB.” SAC ¶3 271 & Prayer for ReliefJ 3. The thirteenth and fourteenth causes of action are for

4 breach of the implied covenant of good faith and fair dealing by the Union and the

5 State Defendants3 respectively. Pauma alleges that the Union breached the covenant

6 by filing the NLRB charges, SAC ¶J 272-79; and the State breached it by failing to

7 agree with Pauma that the Union did so. SAC ¶J 280-86.

8 SUMMARY Of ARGUMENT

9 For this motion only, we accept as true the allegation that the Union is a party to

10 the Compact’s TLRO and provide six reasons to dismiss Pauma’s claims. If the SAC

11 is not dismissed, the Court should strike redundant, immaterial and impertinent

12 allegations or excuse the Union from answering them. See Section F.

13 1. Pauma seeks to use this case to raise a waiver defense it failed to raise before

14 the NLRB. As such, this case represents an invalid collateral attack on the NLRB’s

15 orders and proceedings and should be dismissed. See Section A.

16 2. This Court lacks subject-matterjurisdiction. IGRA authorizes tribes and

17 states to enter into IGRA compacts; it does not authorize private entities to become

18 parties to IGRA compacts. Thus, Pauma’s claims against the Union do not arise under

19 IGRA. They are ordinary contract claims. See Section B. l.a.

20 3. Pauma alleges that its dispute is with the Union, but seeks to create a claim

21 that arises under IGRA by alleging that the State breached its IGRA compact. This

22 claim is insubstantial and frivolous at best. It does not provide a jurisdictional basis

23 because it was brought solely to create jurisdiction and not to resolve a genuine dispute

24 with the State. See Section B.l.b.

25

26

27 We refer to Defendants State of California and Governor Brown collectively as “the

28 State” or “the State Defendants.”3




1 4. A union may waive the right to pursue a claim in statutory forum only by

2 explicitly expressing that intent in a clear and unambiguous language. The TLRO’s

3 dispute resolution provision is too vague to waive the Union’s federal-law right to file

4 charges with the NLRB. See Section C.

5 5. The TLRO’s dispute-resolution procedure does encompass claims which

6 arise under the TLRO itself. Pauma’s claims should be dismissed for failure to exhaust

7 nonjudicial remedies. See Section D.

8 6. The Court has discretionary authority to dismiss Pauma’s claim for

9 declaratory relief. Dismissal is appropriate because adjudicating the claim will serve

10 no purpose and the declaratory relief claims are part of Pauma’s procedural

11 gamesmanship. See Section E.

12 ARGUMENT

13 A. This case is an improper collateral attack on NLRB proceedings.

14 When a plaintiff files a district court case to circumvent NLRB procedures or

15 challenge an NLRB order, the case should be dismissed. Parties to an NLRB

16 proceeding may not “attempt{J an end run around the NLRB under the guise of

17 contract interpretation.” United Ass ‘n ofJourneymen v. Valley Engineers, 975 F.2d

18 611, 615 (9th Cir. 1992); see also Sander v. Weyerhaeuser Co., 966 F.2d 501, 502-03

19 (9th Cir. 1992). “NLRB regulations call for appeals to follow a specified route within

20 a specified period of time. Those procedures become meaningless if the same issue

21 can be raised in another proceeding pursuant to a different set of rules.” Valley

22 Engineers, 975 F.2d at 615; see also Rosen v. NLRB, 735 F.2d 564, 577 (D.C. Cir.

23 1984) (affirming dismissal of district court action challenging NLRB decision because

24 plaintiff who failed to raise issue before the NLRB has “no right to a collateral hearing

25 at variance with the orderly and sound procedures of administrative agency

26 adjudication”); Smith Steel Workers v. A.O. Smith Corp., 420 F.2d 1, 10 (7th Cir. 1969)

27

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1 (claim which union could have raised as a defense in an NLRB proceeding could not

2 be raised in original proceeding).

3 The collateral-attack doctrine applies here because Pauma seeks to litigate an

4 issue that it could have raised in the NLRB proceedings, and to circumvent Ninth

5 Circuit review of one of the NLRB orders. Pauma has not concealed this objective.

6 Pauma filed this action just a few days before its opening brief was due in the Ninth

7 Circuit, and then immediately asked the Ninth Circuit to stay its proceedings until this

$ case is decided. SAC ¶J 174-75; Martin Dec. ¶ 5. In its motion to the Ninth Circuit,

9 Pauma explained its strategy this way:

10 [Tjhe District Court’s resolution of the action in [this case] may moot11 the pending petitions before this Court by determining that the

12 “binding” and “exclusive” arbitration provisions of the TLRO areenforceable against the Union as the agreed upon procedure for

13 resolving all unfair labor practice charges alleged against Casino

14 Pauma and granting relief in the form of specific performance to thatend. Such a result would promote judicial economy by allowing

15 Pauma to develop this fact-based claim first before the district court.16

17 Martin Dec. ¶6, Exh. E, at 4. The Ninth Circuit denied Pauma’s motion. Martin Dec.

18 ¶ & Exh. D (entry nos. 41 and 53).

19 Pauma could have raised its “TLRO as waiver” theory as a defense in the NLRB

20 cases because the NLRB has jurisdiction to interpret contracts between a union and

21 employer. NLRB v. C&C Plywood Co., 385 U.S. 421, 428-30 (1967). Pauma says it

22 did not discover this theory until 2016, but that does not legitimize a new action in this

23 Court. Pauma must address its supposedly-recent discovery with the NLRB.

24 Like Pauma here, the employer in Hospital ofBarstow, Inc. v. Cal. Nurses

25Ass ‘n, 2013 WL 6095559 (C.D. Cal. Nov. 18, 2013) alleged that a union had breached

26 an agreement to arbitrate disputes by filing NLRB charges and, also like Pauma here,

27 sought a declaratory judgment, damages, and specific performance. The court

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MEMORANDUM OF LAW EN SUPPORT OF U1’IITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 dismissed the case, explaining that it lacked authority to enjoin NLRB proceedings or

2 review NLRB decisions, and a district court order “requiring the parties to engage in

3 arbitration regarding a matter already pending before, or decided by, the NLRB would

4 be tantamount to enjoining a pending NLRB proceeding or reviewing a decision

5 already issued by the NLRB.” Id. at *$ (citing Amerco v. NLRB, 458 F.3d 883, $84

6 (9th Cir. 2006); Scott Corp. V. NLRB, 683 F.Supp. 1312, 1315 (D. Nev. 1987)).

7 Dismissal of the entire case is proper even though Pauma named the State as a

8 defendant and seeks declaratory relief and damages (in addition to an injunction). A

9 plaintiff “may not transform what would ordinarily constitute an impermissible

10 collateral attack into a proper independent direct action by changing defendants and

11 altering the relief sought.” Dolv. New York StockExchange, 691 F.2d 1205, 1213 (6th

12 Cir. 1982) (cited favorably in Valley Engineers, 975 F.2d at 615).

13 B. This Court lacks subject-matter jurisdiction.

14 A complaint must allege “the grounds for the Court’s jurisdiction,” Fed. R. Civ.

15 P. 8(a); and the plaintiff has the burden of establishing that jurisdiction exists.

16 McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001); Stock West, Inc. v.

17 Confederated Tribes, $73 F.2d 1221, 1225 (9th Cir. 1989). If the Court agrees that

18 Pauma has not established a basis for federal jurisdiction, the SAC should be dismissed

19 without leave to amend. Morongo Band v. Cal. St. Bd. ofEqual., 85$ F .2d 1376, 1380

20 (9th Cir. 1988). Pauma casts a wide net: it lists five statutes, a clause of the U.S.

21 Constitution, and the Compact. SAC ¶ 10.

22 1. Pauma’s claims do not arise under IGRA.

23 To establish jurisdiction under either 28 U.S.C. § 1331 (the federal question24 statute) or 28 U.S.C. § 1362 (suits brought by Indian tribes), Pauma must allege a25 claim that arises under federal law. Morongo Band, 85$ F.2d at 1383; Gila River26 Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 714 (9th Cir.27 1980). Pauma says that its claims arise under IGRA, as construed by Cabazon Band of28

6MEMORANDUM OF LAW 1N SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECOND

AMENDED COMPLATNT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONSCASE 16-cv-2660-BAS-JLB


1 Mission Indians v. Wilson, 124 F.3d 1050 (9th Cir. 1997).

2 a. Pauma’s claims that the Union breached the TLRO do not arise

3 under IGRA.

4 In Cabazon, the Ninth Circuit held that IGRA creates a federal cause of action

5 for breach of a tribal-state compact. Id. at 1056. The Court reasoned that tribes and

6 states must be able to enforce their compacts in federal court because IGRA permits

7 inclusion of breach of contract remedies in a compact and thereby “invites the tribe and

8 the state to waive their respective immunities and consent to suit in federal court.” Id.

9 In so holding, the Ninth Circuit did not open the door to other claims for violation of

10 IGRA or IGRA compacts. It distinguished ordinary contracts from IGRA compacts

ii because IGRA compacts are “a creation of federal law,” id.; and subsequently

12 emphasized that “where IGRA creates a private cause of action, it does so explicitly.”

13 Hem v. Capitan Grande Band ofDiegeno Mission Indians, 201 F.3d 1256, 1260 (9th

14 Cir. 2000); see also Tamiami Partners v. Miccositkee Tribe ofIndians, 63 F.3d 1030,

15 1049(llthCir. 1995).

16 The flaw in Pauma’s theory is that Cabazon jurisdiction does not extend to

17 breach of contract suits by or against anyone other than the tribe or state. IGRA

18 requires states to negotiate with tribes “for the purpose of entering into a Tribal-State

19 compact,” 25 U.S.C. § 27l0(d)(3)(A); authorizes states and tribes to enter into

20 compacts, and requires that the Interior Secretary approve all such compacts. 25 U.S.C.

21 § 2710(d)(3)(B). IGRA also designates the subjects of such compacts, 25 U.S.C. §22 2710(d)(3)(C); and creates causes of actions that tribes, states and the Interior Secretary

23 may bring in connection with such compacts. 25 U.S.C. § 2510(d)(7). Nothing in

24 IGRA suggests that anyone other than tribes and states may be a party to an IGRA

25 compact.

26 Of course, IGRA does not prevent tribes from contracting with private parties

27 about casino operations, but a contract between a tribe and a private party is not an

28

MEMORANDUM OF LAW IN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 IGRA compact. It is simply a private contract. “[Fjederal question jurisdiction does

2 not exist merely because. . . the case involves a contract with an Indian tribe.” Stock

3 West, 873 F.2d at 1225; see also Cabazon, 124 F.3d at 1055 (“federal courts do not

4 have jurisdiction over run-of-the-mill contract claims brought by Indian tribes”); Gila

5 River, 626 F.2d at 714 (federal jurisdiction over a tribe’s action does not extend to “a

6 simple breach of contract case”).

7 This is true even though the TLRO, which Pauma alleges the Union breached4,

$ is part of Pauma’s Compact with California. In UNITE HERE v. Pata Band ofMission

9 Indians, 583 F.Supp.2d 1190 (S.D. Cal. 200$), the Union sued a different tribe to

10 confirm an arbitration award issued under the TLRO’s dispute resolution procedure

11 and argued that Cabazon gave the Court jurisdiction.5 The court declined to extend

12 Cabazon and “becom[eJ the arbiter of any and all disputes that may arise out of gaming

13 compacts.” Id. at 1197 (internal quotation marks omitted). The court gave several

14 reasons for reaching that conclusion, two of which apply here. First, “the core issue is

15 non-federal — it involves Casino employee labor rights, bargained for by the state of

16 California, and guaranteed by a tribal labor ordinance. ... [T]he TLRO and

17 arbitration award. . . are not the specialized types of contracts subject to extensive

18 federal regulation.” Id. at 1198.6 Cf Wisconsin v. Ho-Chunk Nation, 512 F.3d 921,

19

______________________

20‘ A tribe does not have the power to compel a waiver of federal-law rights, so Pauma

21alleges that the TLRO is not just a tribal law, but a contract to which the Unionassented. SACJ13.

22

23 The TLRO in Pala Band is the same ThRO at issue in this case. See 583 F.Supp.2dat 1192-93; SAC ¶ 85.

24

25 6 This reasoning relies on the black-letter rule that an action for breach of a contractwith an Indian tribe does not arise under federal law even if the federal government

26 authorized or approved the contract. See Morongo Band, 858 F.2d at 1386; Littell v.27 Nakai, 344 F.2d 486, 488 (9th Cir. 1965).

2$8




1 934 (7th Cir. 2008) (limiting IGRA cause of action so that “jurisdiction is not

2 conferred for alleged violations of [compact] provisions ancillary to IGRA’s

3 purposes”). Second, a federal forum is unnecessary in a suit involving a private party,

4 unlike a suit between a tribe and state, because “neither litigant is significantly

5 disadvantaged by proceeding in a state or tribal forum.” Id. at 1 198.

6 b. Pauma’s claims against the State do not create jurisdiction

7 because Pauma’s dispute is with the Union.

8 Pauma named the State as a defendant and added a frivolous claim that the State

9 breached the IGRA Compact to create the appearance that this suit arises under IGRA.7

10 Federal jurisdiction cannot be so manipulated.

ii A suit may be dismissed for lack ofjurisdiction “where the alleged claim under

12 the constitution or federal statutes clearly appears to be immaterial and made solely for

13 the purpose of obtaining federal jurisdiction or where such claim is wholly

14 insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83 (1946); see also Steel

15 Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (jurisdiction lacking “when

16 the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or

17 otherwise completely devoid of merit as not to involve a federal controversy”);

18 Rodriguez v. Donovan, 769 F.2d 1344, 1348 (9th Cir. 1985) (“allegations included in

19 the complaint to create jurisdiction where none would exist otherwise” are

20 insufficient); 28 U.S.C. § 1359 (“A district court shall not have jurisdiction of a civil

21 action in which any party, by assignment or otherwise, has been improperly or

22 collusively made or joined to invoke the jurisdiction of such court.”). “Federal courts

23 are required by § 1359 to determine if a party has been artificially brought into a suit

24 “ Initially, the only cause of action Pauma alleged against the State Defendants was for

25 declaratory relief That was insufficient to create jurisdiction, as both defendants

26explained to Pauma in anticipation of moving to dismiss the original complaint. SAC

¶ 171, 178 & Exh. 26. Pauma then added a second allegation against the State,27 claiming that the State breached the covenant of good faith and fair dealing. SAC ¶I28 280-86.




1 solely in order to invoke federal jurisdiction. The goal of the statute is to limit

2 consideration of actions by federal courts to cases that truly and substantially involve a

3 dispute within the proper jurisdiction of the federal court system.” 15 Moore’s Fed.

4 Frac. § 102.19[1], at 102-54 (3d ed. 2016).

5 Pauma’s dispute is with the Union, not the State. In describing the jurisdiction-

6 creating controversy, Pauma does not mention the State at all:

7 13. This action presents an actual and live controversy as to whether

$ the TLRO obligates the Union to resolve any work related disputes —

including unfair labor practice charges — through the binding dispute9 resolution process set forth within the ordinance rather than the

10 administrative courts of the NLRB, and whether Pauma has and willcontinue to sustain damages as a result of the Union’s refusal to abide

11 by the terms of an agreement that it negotiated and accepted. The12 district court has the power to remedy this dispute in accordance with

13 the Prayer for Relief, infra.

14 SAC ¶ 13. The declaration that Pauma seeks also reflects the State’s irrelevance to this

15 case. Pauma wants a declaration that “the Union has contracted away or otherwise

16 waived its right to litigate work related issues before the NLRB.” Prayer for ReliefJ

17 1.8

18 Even without deciding Pauma’ s motive for suing the State, the Court may

19 dismiss for lack ofjurisdiction because Pauma’s breach of contract claim against the

20 State is insubstantial and frivolous. Pauma does not allege that the State caused or

21 assisted the Union to file the NLRB charges. Pauma admits that the Governor’s

22

23 8 A district court is not bound by the complaint’s alignment of the parties. Scotts Co. v.

24 Seeds, Inc., 68$ F.3d 1154, 1157 (9th Cir. 2012); Dolce v. United Calfornia Bank, 702F.2d 178, 181(9th Cir. 1983); see also Garanti Finansal Kiralama v. Aqua Marine &

25 Trading Inc., 697 F.3d 59, 67 (2d Cir. 2012). Thus, if the Court believes that the State26 is a necessary party to the declaratory relief claim, it can be realigned with Pauma for

27 the purpose of determining whether jurisdiction exists.

2810




1 representative told it that the State “does not have an official position on the matter,”

2 SAC ¶J 168, 284; and does not allege any facts that show that the State does in fact

3 have a position about whether the TLRO waives the Union’s federal right to file NLRB

4 charges.

5 Pauma alleges that the State was required to ensure that the Union complied with

6 the TLRO and, by failing to do so, breached the Compact. SAC ¶J 285-86. But Pauma

7 does not allege that the State has any power to compel the Union to refrain from filing

8 NLRB charges or say what the State failed to do. In fact, all that Pauma says that the

9 State could have done is accept Pauma’s offer to settle this suit after it was filed. SAC

10 ¶171-72,284.

11 No factual allegations show an actual controversy between Pauma and the State,

12 and Pauma’s contrivance to entangle the State in its dispute with the Union does not

13 create federal jurisdiction.

14 2. There is no other basis for federal jurisdiction.

15 The four other jurisdictional bases alleged in the SAC reflect Pauma’s shotgun-

16 style of pleading. The Indian Commerce Clause confers power on Congress, see U.S.

17 Constitution, Art. I, § 8, Cl. 3; but Pauma’s claims in this case do not present any

18 question of congressional power. The Federal Arbitration Act, 9 U.S.C. § 1 et seq.

19 “does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331

20 or otherwise.” Moses H Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

21 25 n.32 (1983); see also G.C. & K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1105

22 (9th Cir. 2003). Nor does the Declaratory Judgment Act, 28 U.S.C. § 2201. Skelly Oil

23 Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Stock West, 873 F.2d at 1225.

24 The Compact does not create jurisdiction, as jurisdiction cannot be created by contract.

25 Morongo Band, 858 F.2d at 1380.

26

27 allegations regarding Pauma’ s settlement discussions with the State should be

28 stricken, as they are inadmissible. See Fed. R. Evid. 408.

MEMORANDUM Of LAW TN SUPPORT Of UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



3. The Court should not exercise supplemental jurisdiction over Pauma’

2contract claims against UNITE HERE.

3 If the Court dismisses Pauma’s claims against the State for lack ofjurisdiction or

4 realigns the State Defendants as plaintiffs for jurisdictional purposes, the Court will not

5 have supplemental jurisdiction over Pauma’s claims against the Union.

6 “[SJupplemental jurisdiction may only be invoked when the district court has a hook of

7 original jurisdiction on which to hang it.” Herman family Revocable Trust v. Teddy

$ Bear, 254 F.3d 802, 805 (9th Cir. 2001). “[hf the court dismisses for lack of subject

9 matter jurisdiction, it has no discretion and must dismiss all claims.” Id. at 806.

10 Without a Cabazon claim against the State, the Court lacks supplemental jurisdiction

11 over the claims against the Union.

12 If the Court dismisses the claims against the State for failure to state a claim or

13 for prudential reasons, the Court should decline to exercise supplemental jurisdiction

14 over the claims against the Union. 2$ U.S.C. § 1367(c)(3); Sanfordv. Memberworks,

15 Inc., 625 F.3d 550, 561 (9th Cir. 2010) (when all federal claims have been dismissed,

16 district court should ordinarily dismiss the remaining claims).

17 C. The TLRO does not waive the Union’s statutory right to file NLRB charges.

181. The TLRO requirement that “all issues” be resolved by arbitration is

19 not a clear and unmistakable waiver.

20 Pauma says that the Union waived its right to file NLRB charges by agreeing to

21 include the following sentence in the TLRO: “All issues shall be resolved exclusively

22 through binding dispute resolution mechanisms herein.. . .“ SAC, Exh. 1 (p. 59).

23 Whether this sentence is effective as a waiver of the statutory right to have NLRB

24 charges resolved in a federal forum’° is a question of law that can be resolved on the

25

2610 The Ninth Circuit has not decided whether courts may enforce a contract waivingthe right to file NLRB charges or whether that power lies exclusively in the NLRB.

27 See FallbrookHosp. Corp. v. Cal. Nurses Ass ‘ii, 652 Fed. Appx. 545, 546 n.1 (9th

28 Cir. 2016). But see Local 743 IAMv. UnitedAircrafl Corp., 337 F.2d 5, 8 (2d Cir.12

MEMORANDUM OF LAW IN SUPPORT Of U1’IITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 pleadings. Doyle v. Raley’s Inc., 158 f.3d 1012 (9th Cir. 199$); Jones v. San Diego

2 Metropolitan Transit $ys., 2015 WL 4873013, a *2 (S.D. Cal. Aug. 13, 2015))’

3 A union may contract to waive statutory rights only if the waiver is “explicitly

4 stated” in “clear and unmistakable” language. Wright v. Universal Maritime Svc.

5 Corp., 525 U.S. 70, 80 (1998). The “clear and unmistakable” waiver standard

6 originated in cases involving waivers of the NLRA right to strike. See Metropolitan

7 Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (courts “will not infer from a general

8 contractual provision that the parties intended to waive a statutorily protected right

9 unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver must be clear

10 and unmistakable.”); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 283 (1956). It was

11 later extended to waivers of the rights to pursue civil rights claims in federal court,

12 Wright, 525 U.S. at 80; and to file charges with the NLRB. FallbrookHosp. Corp. v.

13 Cal. Nurses Ass ‘ii, 652 Fed. Appx. 545, 546 (9th Cir. 2016); Hospital ofBarstow, Inc.

14 v. Cal. Nurses Ass ‘n, 2013 WL 4590973, at *5 (C.D. Cal. Aug. 26. 2013); Queen of

15 ValleyHosp.,316NLRB721,721(1995).

16

17 1964) (“the right to resort to the Board for relief against unfair labor practices cannot18 be foreclosed by private contract”); fiasco Mfg. Co., 162 NLRB 611, 619 (1967). Cf

19 Nash v. Florida Industrial Comm ‘n., 389 U.S. 235, 238 (1967) (“Implementation ofthe [NLRA] is dependent upon the initiative of individual persons who must, as

20 petitioner has done here, invoke its sanctions through filing an unfair labor practice

21 charge. Congress has made it clear that it wishes all persons with information aboutsuch practices to be completely free from coercion against reporting them to the

22 Board.”). Because there are other grounds for dismissing the SAC, the Court need not23 reach this question. Pauma alleges that a union can waive the right to file NLRB

24charges, SAC ¶ 22; but the cases that Pauma cites do not address the right to fileNLRB charges.

25

26A dispute over a contract’s meaning presents a question of law that the court resolves

Confederated Tribes of$iletz Indians v. Oregon, 143 F.3d 481, 484 (9th Cir. 1998)27 (IGRA compact); Northern Cal. Dist. Council ofLaborers v. Pittsburg—Des Moines

2$ Steel Co., 69 F.3d 1034, 1036 (9th Cir. 1995) (labor contract).13

MEMORANDUM OF LAW IN SUPPORT OF LINITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 “[B]road, general language is not sufficient to meet the level of clarity required

2 to effect a waiver.” Eastern Assoc. Coal Corp. v. Massey, 373 F.3d 530, 534 (4th Cir.

3 2004). The arbitration clause at issue in Wright “provid[ed] for arbitration of ‘matters

4 in dispute.” The Court held that this “very general” clause did not clearly and

5 unmistakably waive the right to bring statutory age discrimination claims in federal

6 court because the phrase “matters in dispute” “could be understood to mean matters in

7 dispute under this contract” and “the remainder of the contract contain[ed] no explicit

$ incorporation of statutory antidiscrimination requirements.” 525 U.S. at 70. Compare

9 14 Penn Plaza v. Pyett, 556 U.S. 247, 252 (2009) (contract providing for arbitration as

10 “the sole and exclusive remedy” for claims arising under specifically-named statutes

11 was a clear and unmistakable waiver).

12 Following Wright, courts have applied two rules to decide whether a purported

13 waiver is effective. First, an agreement to arbitrate does not waive the right to seek

14 relief in a federal forum unless the agreement makes explicit reference to the statute or

15 the arbitration clause refers to statutory claims. See, e.g., Wawock v. CSI Electrical

16 Contractors, Inc., 649 Fed. Appx. 556, 558 (9th Cir. May 5, 2016) (“Making no

17 reference to [statutory] claims necessarily falls short of an explicit statement

1$ concerning them.”); Doyle, 158 F.3d at 1015.12 Second, wording that is “susceptible

19 of a contrary reading” is not sufficiently clear and unmistakable. Lawrence, 841 F.3d

20 at 83; Massey, 373 F.3d at 536.

21 The TLRO provision does not come even close. It does not mention the NLRA

22 or an intent to waive statutory claims generally, and the phrase “all issues” is

23

24 ‘2$ee also Lawrence v. Sol G. Atlas Realty Co., Inc., 841 F.3d 81, 84 (2d Cir. 2016);

25 Ibarra v. UPS, 695 F.3d 354, 356-60 (5th Cir. 2012); Cavallaro v. UMass MemorialHosp., 67$ F.3d 1, 7 n.7 (1st Cir. 2012); Bratten v. $51 Servs., Inc., 185 F.3d 625, 631

26 (6th Cir. 1999); Jones, 2015 WL 4873013, at *2; Martinez v. J. Fletcher Creamer &27 Son, Inc., 2010 WL 3359372, at *4 (C.D. Cal. Aug. 13, 2010).

2814

MEMORANDUM OF LAW TN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 susceptible of another obvious meaning: all issues arising under the TLRO. Pauma

2 concedes that “all issues” cannot mean any dispute between the Union and the Tribe,

3 and instead says that it is limited to “work-related” issues. SAC ¶J 13, 82, 194. The

4 phrase “work-related” does not appear in the TLRO. Pauma points out that the TLRO

5 contains a list of “unfair labor practices” that are similar (but not identical) to the

6 NLRA’s unfair labor practices.’3 Creating contractual rights that replicate statutory

7 rights “is not the same as making compliance with the [federal statute] a contractual

$ commitment that would be subject to the arbitration clause.” Wright, 525 U.S. at 76;

9 seealsoDoyle, 158 F.3d at 1015; Ibarra, 695 f.3d at 35$; Martinez, 2010 WL

10 3359372, at * 4 (“[M]ere parallelism with the statutes does not constitute an express

11 waiver of statutory rights”).

12 2. The Union did not have any NLRA rights to waive when the TLRO13 was negotiated.

14 In 1999, when the TLRO was negotiated, the NLRB did not exercise jurisdiction

15 over tribal casinos. That changed when the NLRB decided San Manuel Indian Bingo

16 & Casino, 341 NLRB 1055 (2004) (adopting “new approach” to jurisdiction over tribal

17 businesses), enfd. 475 f.3d 1306 (D.C. Cir. 2007); see also SAC ¶ 104. Timing

1$ matters because only a “known” right can be waived. Matsuo Yoshida v. Liberty

19 Mutuallns. Co., 240 F.2d 824, 829 (9th Cir. 1957). The Union could not waive a right

20 that it did not know it had.21 3. The Union did not waive its NLRA rights by filing an amicus brief in

22 the Coyote Valley Band case.

23 Pauma says that in briefs filed in another case, the Union asserted that the TLRO

24 takes the NLRA’s place. SAC, ¶J 97, 100 & Exhs. 3 1-32. As we explain below,

25

26

27

_________________________

28‘ Compare SAC Exh. 1 (pp. 54-55) with 29 U.S.C. § 158.




1 Pauma misrepresents what the Union argued in those briefs.’4

2 a. Background

3 The Indian Gaming Regulatory Act (“IGRA”) allows a tribe to sue a state for bad

4 faith in negotiating a tribal-state gaming compact. 25 U.S.C. § 2710(d)(7). In 1998, th

5 Coyote Valley Band filed such a suit, challenging California’s demand that tribes adopt

6 the TLRO and arguing that IGRA does not permit negotiations over tribes’ labor

7 relations policies. In re Indian Gaming Related Cases, 147 F.Supp.2d 1011, 1016 (N.D

8 Cal. 2001), aff’d 331 F.3d 1094, 1116-17 (9th Cir. 2003). The district court rejected th

9 Coyote Valley Band’s argument. IGRA permits a gaming compact to address any

10 “subjects that are directly related to the operation of gaming activities,” 25 U.S.C. §11 2710(d)(3)(C)(vii); and the court decided that labor relations at casinos and related

12 facilities fall into that category. 147 F.Supp.2d at 1019. The question in this case --

13 whether the TLRO waives the Union’s statutory right to file charges with the NLRB —

14 was not an issue, either directly or indirectly, in the Coyote Valley Band’s suit.

15 The Coyote Valley Band did not sue the Union and the district court denied the

16 Union’s motion to intervene, but the Union participated as amicus curiae. The Union

17 filed two briefs in that case: a proposed brief in opposition to the Coyote Valley Band’s

18 prima facie showing that the State did not negotiate in good faith; and an amicus brief

19 in opposition to the Coyote Valley Band’s motion for reconsideration. See SAC, ¶J20 97, 100 & Exhs. 3 1-32. Pauma attaches only excerpts of these briefs, but we ask the

21 Court to consider the complete documents, which are attached as Exhibits F and G to

22 the Declaration of Kristin Martin.

23

24 14 Even if the Union had made such an argument, it would not create a waiver.

25 A union’s agreement to waive the right to a federal forum is effective only if thewaiver is “explicitly stated” in “clear and unmistakable” language in the agreement

26 itself. Wright, 525 U.S. at 80. A statement in a brief filed after the agreement was27 made does not satisfy Wright’s strict drafting requirement.

2816

MEMORANDUM Of LAW IN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 b. Exhibit 31 to the SAC

2 In the first brief, the Union principally argued that labor relations is a proper

3 subject for IGRA compact negotiations. Martin Dec., ¶ 11, Exh. F, at 1-3. It explained

4 that the State has an interest in protecting casino workers and that “[a] gaming compact

5 is the only realistic means of securing to Indian casino workers in the foreseeable

6 future the employment rights which all other state citizens enjoy.” Id. at 3.

7 The Union also countered the Coyote Valley Band’s argument that “there is no

8 NLRA jurisdiction over Indian businesses on reservation lands,” Id. at 5; by pointing

9 out that “federal law about the applicability of the NLRA is not settled, but has become

10 quite unsettled in the last eight years — to the point where the NLRB’s General Counsel

11 has issued an unfair labor practice complaint against an Indian casino in California.”

12 Id. at 6. The Union was referring to the complaint against the San Manuel Casino,

13 which was based on charges that the Union filed. The NLRB ultimately decided in

14 that case that the NLRA did apply to tribal casinos. Id.; San Manuel Indian Bingo &

15 Casino, 341 NLRB 1055.’

16 The Union’s brief continued with a lengthy exposition why the NLRA does appi)

17 to tribal businesses. Martin Dec., Exh. F, at 6-14. The Union then explained that if the

18 NLRA were later held to apply, the TLRO would not be preempted because the NLRA

19 does not preempt agreements containing provisions relating to union organizing.16 Id.

20

2115 Pauma accuses the Union of going “back on its word” when it filed the NLRBcharge against the San Manuel Casino. SAC ¶ 4. In fact, the Union filed the two

22 charges against the San Manuel Casino in 1998, before the TLRO was even negotiated.

23 See San Manuel Indian Bingo & Casino, 341 NLRB at 1055 (stating that theunderlying charges were filed on January 8, 1998 and March 29, 1999); SAC ¶ 2 n. 1

24 (stating that tribes executed the compacts containing the TLRO in the fall of 1999).

25

616 A union does not waive its rights under the NLRA by entering into such an

2 agreement even if the agreement provides for another method of dispute resolution,27 such as arbitration. At minimum, the agreement must contain a clear and unmistakable

28 waiver of such rights. FallbrookHosp. Corp., 2013 WL 5347271, at *3 (organizing




1 at 14-15. The Union concluded that “[tJhe ultimate outcome of the question whether

2 there is NLRB jurisdiction over the Indian casinos will not be known for years, but in

3 the end it really doesn’t matter with respect to the Compact, because its provisions are

4 entirely proper and enforceable under the NLRA.” Id. at 15. Nothing in this brief even

5 remotely suggests that the Union intended that the TLRO would waive its right to file

6 charges with the NLRB.

7 c. Exhibit 32 to the SAC

8 In its motion for reconsideration of the district court’s adverse decision, the

9 Coyote Valley Band relied on NLRB v. Pueblo ofSan Juan v. NLRB, 280 F.3d 127$

10 (10th Cir. 2000), in which the Tenth Circuit held that the NLRA did not preempt a

11 tribal right-to-work ordinance. The Union responded by offering several reasons why

12 Pueblo ofSan Juan did not undermine the district court’s order. Martin Dec., ¶ 12,

13 Exh. G, at 5-7. Among other arguments, the Union pointed out that the district court

14 “did not hold that that the National Labor Relations Act applies to on-reservation tribal

15 enterprises.” Id. at 5. The Union then described the district court’s holding as follows:

16 It held that a tribe’s labor relations with its employees in its casino and

17 closely-related enterprises is directly related to gaming operations. It heldthat consequently, it was not in bad faith for the state to negotiate for a

18 TLRO that substitutes for the National Labor Relations Act. Indeed, the

19 State’s proposal presupposes the inapplicability of the NLRA.

20 Id.

21 Pauma grasps onto the word “substitutes” in this paragraph as an admission that

22 the Union intended to waive its rights under the NLRA. SAC ¶ 100. But all that the

23 Union said in this passage is that the district court held that the State negotiated in

24 good faith for the TLRO to take the place of the NLRA because the State presumed

25 that the NLRA does not apply. The Union did not say that if the NLRA were held to

26 agreement with provision to resolve disputes through arbitration rather than through27 appeal to outside agencies did not waive right to file NLRB charges); Hospital of

28 Barstow, Inc., 2013 WL 4590973, at *5 (same).1$




1 apply, the TLRO would then displace the NLRA entirely or operate to waive the

2 Union’s right to file NLRB charges. When Pauma moves beyond the word

3 “substitutes,” it explicitly misrepresents what the brief says. Pauma says that the

4 Union “admitted” “that the TLRO was meant to act as a ‘substitute’ for the NLRA

5 irrespective of whether the NLRA would ever apply to Indian tribes.” SAC ¶J 192,

6 278. “[PJresupposes the inapplicability” (which is the phrase the Union used) does not

7 mean “irrespective of’ or “regardless of’ the NLRA’s applicability.

8 The Union never said that, if the NLRA were held to apply to tribal casinos, the

9 TLRO would displace the NLRA or that the TLRO would waive the Union’s rights

10 under the NLRA.

11 D. Pauma’s claim that the Union breached the TLRO is subject to the TLRO’s

12 dispute resolution procedures.

13 Pauma is suing the Union for resorting to a forum other than arbitration to

14 resolve disputes, and yet, by bringing this suit, Pauma has done the exact same thing.

15 Pauma cannot have it both ways. A complaint may be dismissed under Rule 12(b)(6)

16 for failure to exhaust nonjudicial remedies when the complaint asks the court to

17 resolve an arbitrable dispute, Inlandboatmens’ Union of the Fac’fIc v Dutra Group,

18 279 f.3d 1075, 1084 (9th Cir. 2002); so long as the “failure to exhaust is clear on the

19 face of the complaint.” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en

20 banc); see also Carter v. Rent-A -Ctr., Inc., 2015 WL 4773547, at *3 (D. Nev. Aug.

21 13, 2015); Columbia Cas. Co. v. Cottage Health Sys., 2015 WL 4497730, at *2 (C.D.

22 Cal. July 17, 2015). The failure to exhaust is clear on the SAC’s face because the

23 TLRO is Exhibit 1 to the SAC.

24 The TLRO’s dispute resolution procedures apply to “all issues” between Pauma

25 and the Union, and Pauma alleges that the Union breached the TLRO by filing NLRB

26 charges. While the parties dispute whether “all issues” encompasses statutory claims,

27 Pauma cannot credibly dispute that “all issues” is broad enough to encompass claims

2819

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 for breach of the TLRO itself Pauma was required to exhaust judicial remedies by

2 submitting that issue to arbitration before filing suit in this Court.

E. The Court has discretion to dismiss the declaratory relief claim.4

Even when jurisdiction exists, “district courts possess discretion in determining

6whether and when to entertain an action under the Declaratory Judgment Act.” Wilton

v. Seven Falls Co., 515 U.S. 277, 282 (1995); Hut/i v. Hartford Ins. Co. of the Midwest,

$298 F.3d 800, 802 (9th Cir. 2002).’ rfhe Court should exercise its discretion to dismiss

the declaratory relief claim.

10“In the declaratory judgment context, the normal principle that federal courts

11should adjudicate claims within their jurisdiction yields to considerations of

12practicality and wise judicial administration.” Wilton, 515 U.S. at 288. Courts may

13dismiss an action to “discourage litigants from filing declaratory actions as a means of

14forum shopping”; to “avoid duplicative litigation”; or when “the declaratory action is

15being sought merely for the purposes of procedural fencing or to obtain a ‘res judicata’

16advantage.” Frinc;al Lfe Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005).

17“If the [declaratory] relief serves no purpose, or an illegitimate one, then the district

18court should not grant it.” Exxon Shipping Co. v. Airport Depot Diner, Inc., 120 F. 3d

19166, 168-69 (9th Cir. 1997).

20As explained in Section A, Pauma filed this action to litigate a defense that it

21should have raised in the NLRB proceeding. This would circumvent the NLRB’s

procedures. In fact, Pauma’s stated objective in filing this lawsuit is to litigate a22

factual issue — whether the TLRO is a contract between the Union and Pauma in which23

24the Union waived its statutory right to file NLRB charges — in this Court and then

25somehow try to persuade the Ninth Circuit to adopt the district court’s order when

26 17 a court declines to exercise jurisdiction over a claim for declaratory relief the27 court must specifically state its reasons. Hartford Ins., 298 F.3d at 803.

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MEMORANDUM OF LAW iN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAiNT OR, iN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 reviewing the NLRB orders.’8 Pauma named the State as a defendant and later

2 amended the complaint to add a frivolous claim that the State breached the Compact in

3 order to improve its chances of persuading the Court that Cabazon jurisdiction exists.

4 This bald “procedural fencing” is precisely why the Court has discretion to dismiss

5 declaratory relief claims.

6 F. If the Court does not dismiss the SAC, it should strike redundant,

7 immaterial and impertinent allegations or excuse the Union from answeringthem.

8

9 Rule 8 requires a “short and plain statement of the claim showing that the

10 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2); and that “[ejach allegation be

ii simple, concise and direct.” Fed. R. Civ. P. 8(d)(1). A pleading that is “needlessly

12 long” violates Rule 8. Cafasso v. General Dynamics C4 Sys., Inc., 637 f.3d 1047,

13 1059 (9th Cir. 2011). A model complaint “fully sets for who is being sued, for what

14 relief, and on what theory, with enough detail to guide discovery. It can be read in

15 seconds and answered in minutes.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.

16 1996). It should not be “argumentative, prolix, replete with redundancy and largely

17 irrelevant.” Id. “[D]istrict courts are busy enough without having to penetrate a tome

18 approaching the magnitude of War and Peace to discern a plaintiff’s claims and

19 allegations.” Cafasso, 637 F.3d at 1059. An unnecessarily lengthy complaint burdens

20 the defendant who must admit or deny the allegations and “may show bad faith.” Id.;

21 see also McHeniy, 84 F.3d at 1179 (prolix complaints “impose unfair burdens on

22 litigants and judges”). The Court may strike “excessive factual detail” or excuse

23 defendants from answering allegations. Hearns v. San Bernadino Police Dept., 530

24 F.3d 1124, 1132 (9th Cir. 2008).

2518 This does not make any sense. The record before a federal appeals court on review o

- an agency decision is confined to the agency proceedings, see Fed. R. App. P. 16(a);27 which is why the Ninth Circuit ordered Pauma to file a replacement brief. See Martin

2$ Dec. ¶ 8 & Exh. D (entry no. 53).21

MEMORANDUM OF LAW [N SUPPORT Of UThIITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 Rule 12(f) also authorizes the court to strike “redundant, immaterial,

2 impertinent, or scandalous matter” from a complaint in order to “avoid the expenditure

3 of time and money that must arise from litigating spurious issues.” Fantasy, Inc. v.

4 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by 510 U.S. 517

5 (1994). Allegations are “redundant” if they “constitute a needless repetition of other

6 averments or are foreign to the issue,” Sliger v. Prospect Mortg., 789 F.Supp.2d 1212,

7 1216 (E.D. Cal. 2011); “immaterial” if they have “no essential or important

8 relationship to the claim for relief or the defenses being pleaded” and “impertinent” if

9 they “do not pertain, and are not necessary, to the issues in question.” Fantasy, 984

10 F.2d at 1527. “Superfluous historical allegations” may also be stricken. Id.

11 Pauma’s simple theory — the Union breached the TLRO by filing NLRB charges

12 instead of arbitrating — lends itself to the “short and plain statement” required by Rule

13 8. Instead, the SAC contains 286 paragraphs and 32 attachments. Much detail is

14 immaterial or impertinent, including allegations about:

15 • events that occurred before the ThRO was negotiated (fJ 45-5 0);16 • a brief-like discussion of the law (JJ 18-41, 104-109);17 • criticisms of NLRB decisions (JJ 109, 158-59);18 • poverty on Pauma’s reservation and its causes (JJ 111-13, 117-19);19 . an unrelated suit Pauma brought against the State (JJ 12 1-43, 149-50);20 • the Union’s organizing activities (J 144-47, 156);21 • Pauma’s settlement discussions with the State (J 171-72, 284);22 • the Union’s counsel (J 58-59, 62-66, 103, 108, 146, 157, 160-61, 163); and

23 • quotes from newspaper articles (JJ 50, 58-59, 69, 71, 87-88, 151).24

25

26

27

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MEMORANDUM OF LAW TN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 Pauma also repeats the allegations in paragraphs 196-99 and 201 nearly verbatim more

2 than ten times.19 If the Court does not dismiss the Second Amended Complaint, the

3 Union requests that the Court strike these paragraphs or excuse the Union from

4 answering them.

5 CONCLUSION

6 For all of the foregoing reasons, the Second Amended Complaint should be

7 dismissed, or in the alternative, the redundant, impertinent or immaterial allegations

8 should be dismissed.

9

10 Dated: October 12, 2017 Respectfully submitted,

11McCracken Stemerman & Holsberry, LLP

12

13 /s/Kris tin L. Martin

14 Kristin L. Martin, SBN 20652$Yonina Alexander, SBN 284902Attorneys for Defen ant

16 UNITE HERE International Union

17

18

19

20

21

22

23

24

25

26See SAC ¶ 203-06, 208, 210-13, 215, 217-20, 222, 224-27, 229, 231-34, 236, 238-

27 41, 243, 245-48, 250, 252-55, 257, 259-62, 264, 266-69, 273, 275-77, 281.

2823

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTION TO DISMISS SECONDAMENDED COMPLAINT OR, TN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



Documents

Case 3:16-cv-02660-BAS-AGS Document 34-1 Filed 10/12/17 … · 2018. 10. 2. · 21 Gemtel Corp. v. Community Redevelopment Agency, 22 23 F.3d 1542 (9th Cir. 1994) 1 23 Gila River