case 3:16-cv-02660-bas-ags document 14-1 filed 01/03/17 … · 2018-10-14 · 1 table of contents 2...

Kristin L. Martin, SBN 20652$Yonina Alexander, SBN 28490$DAVIS, COWELL & BOWE, 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/kla 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-BA$-JLB

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

jfed. R. Civ. P. 12(b)(1), (6) and (1)]

Date: February 6, 2017

No Oral Argument Unless Requestedby the Court

Courtroom: 4BJudge: Hon. Cynthia BashantTrial Date: N/AAction Filed: 10/27/2016

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORMA

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MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRSTAMENDED COMPLAINT OR, N THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE 16-cv-2660-BAS-JLB

Case 3:16-cv-02660-BAS-AGS Document 14-1 Filed 01/03/17 PageID.578 of 29

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

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

9 arise 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

14 Paurna’s contract claims against UNITE HERE 12

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

16 charges 13

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

18 not a clear and unmistakable waiver 13

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

20 was negotiated 15

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

22 dispute resolution procedures 16

23 E. The Court has discretion to dismiss the declaratory relief claim 17

24 F. If the Court does not dismiss the FAC, it should strike redundant,

25 immaterial and impertinent allegations or excuse the Union from

26 answering them 18

27 CONCLUSION 20

281

MEMORANDUM OF LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE I 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) 16

8Bell v. Hood,

9 327U.S. 678 (1946) 9

Bratten v. SSJ Servs., Inc.,11 185 F.3d 625 (6th Cir. 1999) 15

12 Cabazon Band ofMission Indians v. Wilson,13 124 F.3d 1050 (9th Cir. 1997) 7, 8, 12, 18

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

15 637F.3d1047(9thCir.2011) 18

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

17 2015 WL 4773547 (D. Nev. Aug. 13, 2015) 16

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) 15

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

252015 WL 4497730 (C.D. Cal. July 17, 2015) 16

26 Confederated Tribes ofSiletz Indians v. Oregon,143 f.3d481 (9thCir. 1998) 13

27

2811

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS

CASE 1 6-cv-2660-BAS-JLB


1 Corey v. New York Stock Exchange,

2691 F.2d 1205(6th Cfr. 1922) 6

Doke v. United Caflfornia Bank,702 F.2d 178(9th Cr. 1983) 10

4Doyle v. Raley’c Inc.,

158F.3d1012(9thCir. 1998) 13,156

Eastern Assoc. Coal Corp. v. Massey,373 F.3d 530(4th Cit 2004) 14, 15

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

120F.3d166(9thCfr. 1997) 1710

Fallbrook Hosp. Corp. v. CaL Nurses Ass ‘n,652 Fed. Appx. 545 (9th Cir. 2016) 13, 14

12Fantasy, Inc. v. Fogerty,

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

14 (1994) 18, 19

15 Flasco Mfg. Co.,

16 162 NLRB 611(1967) 13

17 G.C. & KB. Investments, Inc. v. Wilson,

18 326F.3d 1096(9thCfr. 2003) 11

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

20 697F.3d59 (2dCfr. 2012) 10

21 Gemtel Corp. v. Community Redevelopment Agency,

2223F.3d1542(9thCfr. 1994) 1

23 Gila River Indian Community v. Henningson, Durham & Richardson,626F.2d708(9thCfr. 1980) 6,8

24

25 Granite Rock v. Int’l Bhd. ofTeamsters,561 U.S.287 (2010) 16

26

27 Hearns v. San Bernadino Police Dept.,530 F.3d 1124(9th Cir. 2008) 18

28111

MEMORANDUM OF LAW N SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLANT OR, N THE ALTERNATIVE, TO STRIKE ALLEGATIONS



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

2Herman Family Revocable Trust v. Teddy Bear,

254 F.3d 802 (9th Cir. 2001) 124

Hospital ofBarstow, Inc. v. Cal. Nttrses Ass ‘n,2013 WL 4590973 (C.D. Cal. Aug. 26. 2013) 14

6Hospital oJBars tow, Inc. v. Cal. Nurses Ass ‘n,

2013 WL 6095559(C.D. Cal. Nov. 18, 2013) 5,68

Huth v. Hanford Ins. Co. ofthe Midwest,298 f.3d 800 (9th Cir. 2002) 17

10Ibarra v. UPS,

11 695 F.3d354 (SthCir. 2012) 15

12In re Indian Gaming Related Cases,

13 331 F.3d 1094 (9th Cir. 2003) 1

14Inlandboatmens’ Union of the PacWc v Dutra Grottp,

15 279F.3d 1075 (9thCir.2002) 16

16 Jones v. San Diego Metropolitan Transit Sys.,17 2015WL4873013 13,15

18 Lawrence v. Sol G. Atlas Realty Co., Inc.,19 841 F.3d 81 (2d Cir. 2016) 15

20 Littell v. Nakai,

21 344 f.2d 486 (9th Cir. 1965) 9

22 Local 743 IAMv. UnitedAircraft Corp.,

23 337 F.2d 5 (2d Cir. 1964) 13

24 Martinez v. J. Fletcher Creamer & Son, Inc.,

25 2010 WL 3359372 (C.D. Cal. Aug. 13, 2010) 15

26 Mastro Plastics Corp. v. NLRB,

27 350U.$.270(1956) 14

28lv




1 Matsuo Yoshida v. Liberty Mittital Ins. Co.,240 f.2d $24 (9th Cir. 1957) 16

2

3 McCauley v. Ford Motor Co.,264 F.3d 952 (9th Cir. 2001) 6

4McHenry v. Renne,

84 F.3d 1172 (9th Cir. 1996) 186

Metropolitan Edison Co. v. NLRB,460U.S. 693 (1983) 14

8Morongo Band v. Cal. St. Bd. ofEquaL,

$58 F.3d 1376 (9th Cir. 1988) 6, 9, 12

10Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,

11 460 U.S. 1(1983) 11

12Nash v. Florida Industrial Comm ‘n.,

13 389U.S.235 (1967) 13

14NLRB v. C&C Plywood Co.,

15 385U.S.421 (1967) 5

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

18 320 f.3d 920 (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 Princtal Lfe Ins. Co. v. Robinson,

22394F.3d665 (9thCir. 2005) 17

23 Queen of Valley Hosp.,316NLRB 721 (1995) 14

24

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

26

27 Rosen v. NLRB,735 F.2d 564 (D.C. Cir. 1984) 4

28V

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED

COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONSCASE 1 6-cv-2660-BAS-JLB


San Manitel Indian Bingo & Casino,341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir 2007).15

2Sander v. Weyerhaeuser Co.,

966 f.2d 501 (9th Cir. 1992) 44

Sanford v. Memberworks, Inc.,625 F.3d 550 (9th Cir. 2010) 12

6Scotts Co. v. Seeds, Inc.,

688F.3d1154(9thCir.2012) 108

Skelly Oil Co. v. Phillips Petroleum Co.,339U.S. 667 (1950) 11

10Sliger v. Prospect Mortg.,

11 789 F.Supp.2d 1212 (E.D. Cal. 2011) 19

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

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

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

15 523U.S. 83 (1998) 9

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

18 Tamiami Partners v. Miccosukee Tribe ofIndians,

19 63F.3d1030(llthCir. 1995) 7

20 UNITE HERE v. Pala Band ofMission Indians,

21 583 F.Supp.2d 1190 (S.D. Cal. 2008) 8,9

22 United Ass ‘n ofJourneymen v. Valley Engineers,

23 975 F.2d 611(9th Cir. 1992) 4, 6

24 Wawock v. C”SI Electrical C’ontractors, Inc.,

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

26 Wilton v. Seven Falls Co.,

27 515 U.S. 277 (1995) 17

28vi

MEMORANDUM Of LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



Wisconsin v. Ho-Chunk Nation,512 F.3d 921 (9th Cir. 2008) .9

Wright v. Universal Maritime Svc. Corp.,525 U.S. 70 (1998) 13, 14, 15

Statutes

9U.S.C.1 11

25 U.s.c.

25 U.s.c.

25 U.s.c.

25 U.s.c.

25 U.s.c.

25 U.s.c.

28 U.s.c.

28U.s.c.

28 U.s.c.

28 U.s.c.

28U.s.c.

29U.S.c.

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§

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§

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§

§

§

2701 1

2710(d)(1)(C) 1

2710(d)(3)(A) 7

2710(d)(3)(B) 7

2710(d)(3)(C) 7

2510(d)(7) 7

1331 6,11

1359 9,10

1362 6

1367(c)(3) 12

2201 11,17

158 15

Other Authorities

U.S. Constitution, Art. I, § 8, ci. 3 11

fed. R. App. P. 16(a) 17

fed. R. Civ. P. 8 18, 19

fed. R. civ. . 8(a) 6

viiMEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED



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fed. R. Civ. P. 8(a)(2) 18

Fed. R. Civ. P. 8(d)(1) 18

Fed. R. Civ. P. 12(b)(6) 16

fed. R. Civ. P. 12(f) 18

fed. R. Evid. 408 11

15 Moore’s fed. Frac. § 102.19[1], at 102-54 (3d ed. 2016) 10

viiiMEMORANDUM Of LAW IN SUPPORT OF UNiTE HERE’S MOTIONTO DISMISS FIRST AMENDED



1 RELEVANT COMPLAINT ALLEGATIONS

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

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 Paurna Band of Luiseno Mission Indians (“Pauma”) and California entered

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

9 First Amended Complaint (“fAC”), ¶ 100. In the Compact, Pauma agreed to adopt a

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

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

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

13 (9th Cir. 2003).

14 In 2001, Paurna began operating a casino on its reservation. FAC ¶ 102.

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

16 industry workers. FAC ¶ 14. 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. FAC ¶J 143, 167 & 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); C’asino Fauma, 362 NLRB No. 52 (March 31, 2015)

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

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

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

25 record or are referenced in the complaint. No. 84 Employer-Teamster Joint ouncii

26 Pension Trust fund v. America West Holding ‘orp., 320 F.3d 920, 925 n.2 (9th Cir.

2003); Gemtei Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1544 n. 127 (9th Cir. 1994). The documents attached to the Martin Declaration meet this standard.

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MEMORANDUM OF LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED

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


1 That petition for review is pending in the Ninth Circuit. FAC ¶ 146; Martin Dec. ¶ 5,

2 Exh. D. An administrative law judge issued a decision on a sixth charge, and Pauma

3 has appealed that decision to the NLRB. FAC ¶J 147, 241; Martin Dec. ¶ 4, Exh. C.

4 One charge was just filed on December 12, 2016, and has not yet been adjudicated.

5 FAC ¶J 8, 248. The others were withdrawn before prosecution. FAC ¶ 206, 227,

6 234.

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

8 FAC ¶J 81, 83 & Exh. 1 (p. 59-60). Pauma contends that the TLRO’s arbitration

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

10 violated that waiver. FAC ¶ 12, 143, 179. Paurna recognizes that it cannot contract

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

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

13 the Compact and did not sign the Compact, but Pauma posits that the Union’s role in

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

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

16 government into a contracting party. FAC ¶ 157 & Exh. 1.

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

1$ waived its right to file NLRB charges — is the basis for each of the fourteen causes of

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

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

21 NLRB.” FAC ¶ 179 & Prayer for Re1iefJ 1. The second through eleventh causes of

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

23 seek damages as the remedy. 2 FAC ¶ 180-249. The twelfth cause of action seeks an

24

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25 2J its zeal to pad the complaint, Pauma disregarded the fact that the charges alleged inthe fifth and sixth causes of action are identical. The Union filed the charge once, but

26 the NLRB docketed it twice. One of those charges was then withdrawn. See FAC ¶27 206,213 &Exh.24.

282




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.” FAC ¶3 256 & Prayer for Re1iefJ 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. Paurna alleges that the Union breached the covenant

6 by filing the NLRB charges, FAC ¶J 257-64; and the State breached it by failing to

7 agree with Paurna that the Union did so. FAC ¶J 265-7 1.

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9 SUMMARY OF ARGUMENT

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

11 the Compact’s TLRO and provide six reasons to dismiss Pauma’s claims. If the FAC

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

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

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

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

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

17 2. This Court lacks subject-matter jurisdiction. IGRA authorizes tribes and

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

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

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

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

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

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

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

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

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

28 State” or “the State Defendants.3

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED

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


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 reflects Paurna’s procedural gamesmanship. See Section E.

11

12 ARGUMENT

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

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

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

17 proceeding may not “attempt[] an end run around the NLRB under the guise of

18 contract interpretation.” United Ass ‘11 ofJourneymen v. Valley Engineers, 975 F.2d

19 611, 615 (9th Cir. 1992); see also Sander v. Weyerhaeuser Co., 966 f.2d 501, 502-03

20 (9th Cir. 1992). “NLRB regulations call for appeals to follow a specified route within

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

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

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

24 1984) (affirming dismissal of district court action challenging NLRB decision because

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

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

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

28


CASE I6-cv-2660-BAS-JLB


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. FAC ¶J 160-61; Martin Dec. ¶ 5. In its motion to the Ninth Circuit,

9 Pauma explained its strategy this way:

10

11 [T]he District Court’s resolution of the action in [this case] may mootthe pending petitions before this Court by determining that the

12 “binding” and “exclusive” arbitration provisions of the TLRO are13 enforceable against the Union as the agreed upon procedure for

4resolving all unfair labor practice charges alleged against Casino

1 Pauma and granting relief in the form of specific performance to that15 end. Such a result would promote judicial economy by allowing

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

17

1$Martin Dec. ¶ 5, Exh. E, at 4. The Ninth Circuit denied Paurna’s motion. Martin Dec.

19 ¶ 6 & Exh. D (entry nos. 41 and 53).

20Pauma could have raised its “TLRO as waiver” theory as a defense in the NLRB

‘71cases because the NLRB has jurisdiction to interpret contracts between a union and

22employer. NLRB v. C&C Plywood Co., 385 U.S. 421, 428-30 (1967). Paurna says it

23did not discover this theory until 2016, but that does not legitimize a new action in this

24Court. Paurna must address its discovery with the NLRB.

25Like Pauma here, the employer in Hospital ofBarstow, Inc. v. C’aL Nurses

26Ass ‘n, 2013 WL 6095559 (C.D. Cal. Nov. 18, 2013) alleged that a union had breached

27an agreement to arbitrate disputes by filing NLRB charges and, also like Paurna here,

28sought a declaratory judgment, damages, and specific performance. The court

5MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED

COMPLAINT OR, IN THE ALTERNATIVE TO STRIKE ALLEGATIONSCASE 1 6-cv-2660-BAS-JLB


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 *8 (citing Arnerco v. NLRB, 45$ F.3d 883, 884

6 (9th Cir. 2006); Scott Coip. 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.” Corey v. New York Stock Exchange, 691 F.2d 1205, 1213

12 (6th 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, 873 F.2d 1221, 1225 (9th Cir. 1989). If the Court agrees that

is Pauma has not established a basis for federal jurisdiction, the FAC should be dismissed

19 without leave to amend. Morongo Bandy. cal. St. Bd. ofEqual., 858 F.3d 1376, 1380

20 (9th Cir. 198$). Pauma casts a wide net: it lists five statutes, a clause of the U.S.

21 Constitution, and the Compact. FAC ¶ 9.

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

23 To establish jurisdiction under either 28 U.S.C. § 1331 (the federal question

24 statute) or 28 U.S.C. § 1362 (suits brought by Indian tribes), Pauma must allege a

25 claim that arises under federal law. Morongo Band, 85$ F.2d at 1383; Gila River

26 Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 714 (9th Cir.

27

286




1 1980). Pauma says that its claims arise under IGRA, as construed by Cabazon Band of

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

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

4 arise under IGRA.

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

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

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

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

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

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

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

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

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

14 Hem v. C’apitan Grande Band ofDiegeno Mission Indians, 201 f.3d 1256, 1260 (9th

15 Cir. 2000); see also Tamiarni Partners v. Miccosukee Tribe ofIndians, 63 F.3d 1030,

16 1049(llthCir. 1995).

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

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

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

20 compact,” 25 U.S.C. § 2710(d)(3)(A); authorizes states and tribes to enter into

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

22 § 2710(d)(3)(B). IGRA also designates the subjects of such compacts, 25 U.S.C. §23 271 0(d)(3)(C); and creates causes of actions that tribes, states and the Interior Secretary

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

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

26 compact.

27

287




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

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

3 IGRA compact. It is simply a private contract. “[F]ederal question jurisdiction does

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

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

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

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

8 simple breach of contract case”).

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

10 is part of Paurna’ s Compact with California. In UNITE HERE v. Fala Band ofMission

11 Indians, 583 F.Supp.2d 1190 (S.D. Cal. 2008), the Union sued a different tribe to

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

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

14 Cabazon and “becom[e] the arbiter of any and all disputes that may arise out of gaming

15 compacts.” M at 1197 (internal quotation marks omitted). The court gave several

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

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

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

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

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

21

22 A tribe does not have the power to compel a waiver of federal-law rights, so Paurna

73 alleges that the TLRO is not just a tribal law, but a contract to which the Unionassented. FAC ¶ 12.

24

25 The TLRO in Fala Band is the same TLRO at issue in this case. See 583 F.Supp.2dat 1192-93; FAC ¶ 84.

26

27 6 This reasoning relies on the black-letter rule that an action for breach of a contract

28 with an Indian tribe does not arise under federal law even if the federal government8




1 934 (9th 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 119$.

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

7 because Pauma’s dispute is with the Union.

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

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

10 Federal jurisdiction cannot be so manipulated.

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. Hooci 327 U.S. 678, 682-83 (1946); see also Steel

15 Co. v. Citizensfor a Better Env ‘t, 523 U.S. 83, 89 (1992) (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”);

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

22 authorized or approved the contract. See Morongo Band, 858 F.2d at 1326; Littell v.

23 Nakai, 344 f.2d 486, 488 (9th Cir. 1965).

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

explained to Pauma in anticipation of moving to dismiss the original complaint. FAC26 157, 164 & 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. FAC ¶J28 265-71.

9MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED



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

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

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

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

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

6 dispute within the proper jurisdiction of the federal court system.” 15 Moore ‘s fed

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

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

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

1012. This action presents an actual and live controversy as to whetherthe TLRO obligates the Union to resolve any work related disputes —

12 including unfair labor practice charges — through the binding dispute

13 resolution process set forth within the ordinance rather than the

14administrative courts of the NLRB, and whether Pauma has and willcontinue to sustain damages as a result of the Union’s refusal to abide

15 by the terms of an agreement that it negotiated and accepted. The

16 district court has the power to remedy this dispute in accordance withthe Prayer for Relief, infra.

17

18

19 FAC ¶ 12. The declaration that Pauma seeks also reflects the State’s irrelevance to this

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

21 waived its right to litigate work related issues before the NLRB.” Prayer for Relief 1.

22

23 $ 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 california Bank, 702F.2d 17$, 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 Even without deciding Pauma’s motive for suing the State, the Court may

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

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

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

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

6 FAC ¶ 154, 269; and does not allege any facts that show that the State does in fact

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

8 charges.

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

10 the TLRO and, by failing to do so, breached the Compact. FAC ¶J 270-71. But Pauma

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

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

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

14 ¶ 157-58, 269.

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

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

17 create federal jurisdiction.

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

19 The four other jurisdictional bases alleged in the FAC reflect Pauma’s shotgun-

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

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

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

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

24 or otherwise.” Moses if Cone Memorial Hosp. v. Mercury Constr. corp., 460 U.S. 1,

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

26

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

28 stricken, as they are inadmissible. See Fed. R. Evid. 408.11

MEMORANDUM Of LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 (9th Cir. 2003). Nor does the Declaratory Judgment Act, 2$ U.S.C. § 2201. Skelly Oil

2 Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Stock West, $73 F.2d at 1225.

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

4 Morongo Band, 85$ F.2d at 13 $0.

5 3. The Court should not exercise supplemental jurisdiction over

6 Pauma’s contract claims against UNITE HERE.

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

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

9 have supplemental jurisdiction over Paurna’s claims against the Union.

10 “[S]upplemental jurisdiction may only be invoked when the district court has a hook of

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

12 Bear, 254 f.3d 802, 805 (9th Cir. 2001). “[I]f the court dismisses for lack of subject

13 matter jurisdiction, it has no discretion and must dismiss all claims.” Id. at $06.

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

15 over the claims against the Union.

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

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

18 over the claims against the Union. 28 U.S.C. § 1 367(c)(3); Saniord v. Memberworks,

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

20 district court should ordinarily dismiss the remaining claims).

21 /1/

22 /1/

23 /1/

24 /1/

25 I/I

26 /1/

27 /1/

2812




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

2charges’°

1. The TLRO requirement that “all issues” be resolved byarbitration is not a clear and unmistakable waiver.

4

5 Paurna says that the Union waived its right to file NLRB charges by agreeing to

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

7 through binding dispute resolution mechanisms herein.. . .“ FAC Exh. 1 (p. 59).

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

9 charges resolved in a federal forum is a question of law that can be resolved on the

10 pleadings. Doyle v. Raley ‘s Inc., 158 f.3d 1012 (9th Cir. 1998); Jones v. San Diego

ii Metropolitan Transit Sys., 2015 WL 4873013, a *2 (S.D. Cal. Aug. 13, 2015).h1

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

13 stated” in “clear and unmistakable” language. Wight v. Universal Maritime Svc.

14JO The Ninth Circuit has not decided whether courts may enforce a contract waiving

15 the right to file NLRB charges or whether that power lies exclusively in the NLRB.

16 See Fallbrook Hosp. Corp. v. C’aL Nurses Ass ‘n, 652 fed. Appx. 545, 546 n. 1 (9thCir. 2016). Bitt see Local 743 IAMv. UnitedAircraft Corp., 337 f.2d 5, 8 (2d Cir.

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 C’omm ‘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 FAC, the Court need not

23 reach this question. Pauma alleges that a union can waive the right to file NLRB

24charges, FAC ¶ 21; 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 ofSiletz Indians v. Oregon, 143 f.3d 481, 484 (9th Cir. 1998)27 (IGRA compact); Northern C’al. Dist. Cottncil ofLaborers v. Pittsburg—Des Moines

28 Steel Co., 69 f.3d 1034, 1036 (9th Cir. 1995) (labor contract).13

MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



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

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

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

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

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

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

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

8 Wight, 525 U.S. at 80; and to file charges with the NLRB. falibrook Hosp. Coip. v.

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

10 v. Cal. NitrsesAss’n, 2013 WL 4590973, at *5 (C.D. Cal. Aug. 26. 2013); Queen of

11 ValleyHosp.,316NLRB 721,721 (1995).

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

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

14 2004). The arbitration clause at issue in Wight “provid[ed] for arbitration of ‘matters

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

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

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

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

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

20 14 Penn Plaza v. Pyett, 556 U.S. 247, 252 (2009) (contract providing for arbitration as

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

22 was a clear and unmistakable waiver).

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

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

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

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

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

2814

MEMORANDUM Of LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED



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

2 concerning them.”); Doyle, 15$ f.3d at 1015.12 Second, wording that is “susceptible

3 of a contrary reading” is not sufficiently clear and unmistakable. Lawrence, $41 F.3d

4 at $3; Massey, 373 f.3d at 536.

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

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

7 susceptible of another obvious meaning: all issues arising under the TLRO.’3 Paurna

$ points out that the TLRO contains a list of “unfair labor practices” that are similar (but

9 not identical) to the NLRA’s unfair labor practices.14 Creating contractual rights that

10 replicate statutory rights “is not the same as making compliance with the [federal

11 statute] a contractual commitment that would be subject to the arbitration clause.”

12 Wight, 525 U.S. at 76; see also Doyle, 15$ f.3d at 1015; Ibarra, 695 F.3d at 35$;

13 Martinez, 2010 WL 3359372, at * 4 (“[M]ere parallelism with the statutes does not

14 constitute an express waiver of statutory rights”).

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

16 TLRO was negotiated.

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

1$ over tribal casinos. That changed when the NLRB decided San Manuel Indian Bingo

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

20125 also Lawrence v. Sol G. Atlas Realty Co., Inc., $41 f.3d $1, $4 (2d Cir. 2016);Ibarra v. UPS, 695 f.3d 354, 356-60 (5th Cir. 2012); C’avaiiaro v. Uliass Memorial

22 Hosp., 678 f.3d 1, 7 n.7 (1st Cir. 2012); Bratten v. 551 Servs., Inc., 185 F.3d 625, 631

23 (6th Cir. 1999); Jones, 2015 WL 4873013, at *2; Martinez v. I Fletcher Creamer &Son, Inc., 2010 WL 3359372, at *4 (C.D. Cal. Aug. 13, 2010).

24

2513 Paurna concedes that “all issues” cannot mean any dispute between the Union andthe Tribe, and instead says that it is limited to “work-related” issues. FAC ¶J 12, $1,

26 179. The phrase “work-related” does not appear in the TLRO.27

Compare FAC Exh. 1 (pp. 54-55) with 29 U.S.C. § 15$.— 15

MEMORANDUM Of LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDED

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


1 businesses), enfd. 475 F.3d 1306 (D.C. Cir. 2007); see also FAC ¶ 90. Timing matters

2 because oniy a “known” right can be waived. Matsuo Yosh Ida v. Liberty Mutual Ins.

3 Co., 240 F.2d 824, 829 (9th Cir. 1957). The Union could not waive a right that it did

4 not know it had.

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

6 dispute resolution procedures.

7 Paurna is suing the Union for resorting to a forum other than arbitration to

8 resolve dispute, and yet, by bringing this suit, Pauma has done the exact same thin,.

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

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

11 resolve an arbitrable dispute, Inlandboatmens’ Union of the PacWc v Dutra Group,

12 279 F.3d 1075, 1084 (9th Cir. 2002); so long as the “failure to exhaust is clear on the

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

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

15 13, 2015); oiu;nbia as. Co. v. Cottage Health Svs., 2015 WL 4497730, at *2 (C.D.

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

17 TLRO is Exhibit 1 to the FAC.

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

19 and the Union, and Paurna alleges that the Union breached the TLRO by filing NLRB

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

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

22 for breach of the TLRO itself. Paurna was required to exhaust judicial remedies by

23 submitting that issue to arbitration before filing suit in this Court.’5

24

25

________________________

2615 If the Union refuses to arbitrate, Pauma may then seek to compel arbitration. CfGranite Rocky. Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010) (dispute about

27 arbitrability, including contract formation, are for the court to decide).

2816




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

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

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

4 v. Seven Falls C’o., 515 U.S. 277, 282 (1995); Huth v. Hanford Ins. Co. of the Midwest,

5 29$ F.3d 800, $02 (9th Cir. 2002).16 The Court should exercise its discretion to dismiss

6 the declaratory relief claim.

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

$ should adjudicate claims within their jurisdiction yields to considerations of

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

10 dismiss the action to “discourage litigants from filing declaratory actions as a means of

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

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

13 advantage.” PnincialLfe Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005).

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

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

16 166, 168-69 (9th Cir. 1997).

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

18 should have raised in the NLRB proceeding, thereby circumventing the NLRB ‘5

19 procedures. Indeed, Pauma’s stated objective in filing this lawsuit is to litigate a

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

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

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

23 reviewing the NLRB orders.’7 Paurna named the State as a defendant and later

24

________________________

25 ‘6When a court declines to exercise jurisdiction over a claim for declaratory relief, the

26court must specifically state its reasons. Hartford Ins., 298 F.3d at 803.

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

2$ an agency decision is confined to the agency proceedings, see fed. R. App. P. 16(a);17

MEMORANDUM OF LAW IN SUPPORT OF UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



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

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

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

4 declaratory relief claims.

5 F. If the Court does not dismiss the FAC, it should strike redundant,

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

7

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

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

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

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

12 1059 (9th Cir. 2011). A model complaint “fully sets for who is being sued, for what

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

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

15 1996). It should not be “argumentative, prolix, replete with redundancy and largely

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

17 approaching the magnitude of War and Peace to discern a plaintiffs claims and

18 allegations.” &zfasso, 637 F.3d at 1059. An unnecessarily lengthy complaint burdens

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

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

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

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

23 f.3d 1124, 1132 (9th Cir. 2008).

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

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

26

27 which is why the Ninth Circuit ordered Paurna to file a replacement brief. See Martin

28 Dec. ¶7 & Exh. E (entry no. 53).18




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

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

3 (1994). Allegations are “redundant” if they “constitute a needless repetition of other

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

5 1216 (E.D. Cal. 2011); “immaterial” if they have “no essential or important

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

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

8 f.2d at 1527. “Superfluous historical allegations” may also be stricken. Id.

9 Paurna’s simple theory -- the Union breached the TLRO by filing NLRB charges

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

11 8. Instead, the FAC contains 271 paragraphs and 27 attachments. Much detail is

12 immaterial or impertinent, including allegations about:

13 • events that occurred before the TLRO was negotiated (fJ 41-66);14

• a brief-like discussion of the law (J 17-40, 90-95);15 • criticisms of NLRB decisions (J 95, 144-45);1.6 • poverty on Paurna’s reservation and its causes (fJ 97-99, 103-06);17

• an unrelated suit Pauma brought against the State (JJ 107-29, 135-36);18 • the Union’s organizing activities (J 129-33, 142);19 • Paurna’s settlement discussions with the State (J 157-58, 269);20 • the Union’s counsel (JJ 57-58, 6 1-65, 89, 94, 132, 143, 146-47, 149); and21

• quotes from newspaper articles (J 49, 57-5 8, 68, 70, 86-87, 137).22

23 Pauma also repeats the allegations in paragraphs 181-84 and 186 nearly verbatim more

24 than ten times.’8 If the Court does not dismiss the First Amended Complaint, the Union

25

2618 See FAC ¶J 188-91, 193, 195-98, 200, 202-05, 207, 209-12, 214, 216-19, 221, 223-

2,7 26, 228, 230-33, 235, 237-40, 242, 244-47, 249, 25 1-54, 258, 260-62, 266.

2819

MEMORANDUM OF LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



1 requests that the Court strike these paragraphs or excuse the Union from answering

2 them.

3 CONCLUSION

4 for all of the foregoing reasons, the First Amended Complaint should be

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

6 should be dismissed.

7

8 Dated: January 3, 2017 Respectfully submitted,

9DAVIS, COWELL & BOWE, LLP

10

11 /s/Kristin L. Martin

12 Kristin L. Martin, SBN 206528Yonina Alexander, SBN 284908A ttorneysfor Defendant

14 UNITE HERE International Union

15

16

17

18

19

20

21

22

23

24

25

26

27

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MEMORANDUM Of LAW IN SUPPORT Of UNITE HERE’S MOTIONTO DISMISS FIRST AMENDEDCOMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS



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