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Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am.

United States Court of Appeals, Ninth Circuit

September 23, 2014

THE RETAIL PROPERTY TRUST, a Massachusetts business trust, Plaintiff-Appellant,

Argued and Submitted, Pasadena, California: November 8, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California. D.C. No. 8:10-cv-01605-CJC-AJW. Cormac J. Carney, District Judge, Presiding.


Labor Law

Reversing the district court's grant of a motion to dismiss state-law claims and a motion for judgment on the pleadings, and affirming the dismissal of a federal claim, the panel held that § 303 of the Labor Management Relations Act did not preempt state-law claims for trespass and private nuisance related to union activity that may also have constituted secondary boycott activity.

Disagreeing with the Seventh Circuit, the panel held that federal law does not so thoroughly occupy the field that it always preempts such claims. The panel held that the LMRA did not conflict with the plaintiff mall owner's trespass and nuisance claims because the claims touched interests deeply rooted in local feeling and responsibility, and the plaintiff sought only to enforce time, place, and manner restrictions against union protesters. The panel remanded the case to the district court for consideration of the state-law claims.

Stacey McKee Knight (argued) and Pamela Tsao, Katten Muchin Rosenman LLP, Los Angeles, California; Robert T. Smith, Katten Muchin Rosenman LLP, Washington, D.C., for Plaintiff-Appellant.

Yuliya S. Mirzoyan (argued) and Daniel M. Shanley, DeCarlo & Shanley, a Professional Corporation, Los Angeles, California, for Defendants-Appellees.

Before: Ronald M. Gould and Jay S. Bybee, Circuit Judges, and Edward M. Chen, District Judge.[*] Opinion by Judge Bybee.


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BYBEE, Circuit Judge:

In this case we must decide whether § 303 of the Labor Management Relations

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Act (" LMRA" ), codified at 29 U.S.C. § 187, preempts state-law claims for trespass and private nuisance related to union conduct that may also constitute secondary boycott activity. Following the reasoning of Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Wis. Empl. Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), and Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), we hold that federal law does not so thoroughly occupy the field that it always preempts such claims, nor does it conflict with the state law claims presented here. Where, as in this case, state claims of trespass and nuisance " touch[] interests deeply rooted in local feeling and responsibility," Belknap, Inc. v. Hale, 463 U.S. 491, 498, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), and the plaintiff seeks only to enforce time, place, and manner restrictions against union protesters, " we are unwilling to presume that Congress intended . . . to deprive the California courts of jurisdiction to entertain [the nuisance and] trespass action[s]." Sears, 436 U.S. at 207. We reverse the district court's grant of the defendants' motion to dismiss and remand the case to the district court for consideration of the state-law claims of trespass and nuisance against the defendants.


The Plaintiff-Appellant, Retail Property Trust (" RPT" or " the Mall" ), owns Brea Mall in Brea, California. The Defendants-Appellees are United Brotherhood of Carpenters and Joiners of America Local 803; the Union's secretary-treasurer, James Flores; and fictitious defendants (collectively, " the Union" ). According to the Mall's allegations, in 2010, one of the Mall's tenants, Urban Outfitters, contracted with non-union subcontractors to renovate the store in advance of its opening. Flores sent a letter to the Mall advising it of the Union's plans to pursue a labor dispute " under federal labor laws and the First Amendment of the United States Constitution, the California Constitution and California Labor Law." The Union advised that it would " choose the terms [it] deem[ed] appropriate in conveying [its] message, without censure" and that it would " publicize[]" its concerns " at the premises of everyone involved in the labor dispute to inform the public of the presence of a 'RAT' contractor."

The Mall is privately owned, but it has a policy for accommodating speech-related activities on its property. It developed its time, place, and manner restrictions to abide by the California Constitution's protection of " speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, 347 (Cal. 1979), aff'd sub nom. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); see also Cal. Const. art. I, § 2(a) (" Every person may freely speak, write and publish his or her sentiments on all subjects." ). The Mall generally requires petitioners, solicitors, and protestors to fill out an application in advance, to agree to remain within one of two designated common areas, and not to create noise of such volume as to impinge on the peace of the general public, obstruct pedestrian traffic, or damage or destroy any property. It also specifically prohibits " physical force, obscene language or gestures, or racial, religious or ethnic slurs," physical or verbal threats, or " any disturbance which is disruptive to the Center's commercial function."

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The Mall's rules for public use of common areas specifically recognize " Qualified Labor Activity," such as " picketing and/or informational leafletting," as a special class of protected activity. Unlike other members of the public, labor organizations and their representatives may choose between conducting their activities in a designated area or in an alternate area chosen by the Mall " proximately located to the targeted employer or business." The Mall reserves the right to prohibit labor activity from areas that would threaten the personal safety of Mall patrons.

The Mall alleged that, beginning on October 1, 2010, and continuing on several occasions that month, dozens of union members violated these rules when they, having not filled out an application:

came onto the Mall's privately owned common areas in front of the Urban Outfitters construction site and started a disruptive protest by marching in a circle, yelling, chanting loudly in unison, blowing whistles, hitting and kicking the construction barricade (which created a large hole in the barricade), and hitting their picket signs against the Mall railings, which created an intimidating and disquieting environment that interfered with the Mall's and its tenants' normal operation of business.

The Mall alleged that union members also cat-called and made sexually provocative gestures toward female patrons and, at one point, " moved their protesting activities in front of two other tenant stores, neither of which had any relationship to Urban Outfitters or its contractor." Flores told the Mall manager that the Union would continue to picket and protest " until such time that the Mall either forced Urban Outfitters to stop their construction work or until the Mall closed down the [Urban Outfitters] construction." At no point during these protests was Urban Outfitters open for business. The Mall claimed it " received a number of complaints from its tenants, to whom it has a contractual obligation to provide a quiet and peaceful environment to conduct business."

The Mall filed its complaint in California Superior Court, alleging state-law claims for trespass and nuisance and seeking declaratory and injunctive relief. The Union immediately removed the case to federal court on the ground that the Mall had alleged the equivalent of unlawful secondary boycott activity in violation of § 303 of the LMRA. As a result, the Union argued, the state claims were not only preempted by federal law, but the Mall had also effectively stated a federal cause of action. See Morton, 377 U.S. at 261; Ethridge v. Harbor House Rest., 861 F.2d 1389, 1400 n.7 (9th Cir. 1988).

Section 303 prohibits, through cross-reference to 29 U.S.C. § 158, labor organizations or their agents from " threaten[ing], coerc[ing], or restrain[ing] any person engaged in commerce or in an industry affecting commerce, where . . . an object thereof is . . . forcing or requiring any person to . . . cease doing business with any other person." 29 U.S.C. § 158(b)(4)(ii)(B). These are known as " secondary boycott activities," since they are directed at parties who are not involved in the labor dispute, as opposed to primary boycott activities in which a union pressures an employer to change its behavior. See Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 644-45, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). " The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees'

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demands." Id. at 627 n.16 (quoting International Brotherhood of Electrical Workers v. NLRB, 181 F.2d 34, 37 (2d Cir. 1950) (Hand., J.)); see also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227 (9th Cir. 1988).

In December 2010, the district court denied the Mall's request to remand the case to state court. The district court observed that " the sum of RPT's present allegations assert that Defendants have violated § 8(b)(4)(B) [29 U.S.C. § 158(b)(4)(B)] . . . . Specifically, RPT has alleged that Defendants' protests have been loud, destructive, and disruptive, causing RPT and its tenants to suffer damages." It noted that " RPT is itself a target of Defendants' pressure," since the Union threatened to force the Mall to close the Urban Outfitters construction if it did not prevent Urban Outfitters from hiring non-union subcontractors. The district court acknowledged that a defendant ordinarily cannot remove a case based on the assertion of a federal defense, but found there was a " complete preemption" exception where " any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir. 2000); see also Smart v. Local 702 Intl' Bhd of Elec. Workers, 562 F.3d 798, 808 (7th Cir. 2009). The court concluded that " complete preemption [] applies," in this case, denied the motion to remand, and exercised supplemental jurisdiction over the Mall's trespass and private nuisance claims.

The district court gave the Mall leave to file an amended complaint, " in order to make clear that RPT did not intend to pursue any claim against Defendants beyond those related to Defendants' alleged violations of RPT's time, place and manner restrictions." The Mall filed its First Amended Complaint in January 2011 and renewed its motion to remand the case to state court. In the district court's March 2011 order on the renewed motion to remand, the court acknowledged that the Mall " eliminated many of its factual allegations regarding threats and other intimidating behavior by Defendants," but it held that the Mall still alleged that it " suffered injury and harm to its business interests and that the demonstrations obstructed Plaintiff and its tenants free use of its private property." The district court held that, because the Mall's " time, place and manner restrictions prohibit the same conduct that is prohibited under 29 U.S.C. § 158(b)(4) . .., RPT's claims to enforce its time, place and manner rules are still completely pre-empted by the federal statute."

In July 2011, the Mall filed a Second Amended Complaint (" SAC" ). It again included claims for trespass, private nuisance, and injunctive relief for unlawful acts by a union pursuant to California Labor Code § 1138.1, which specifies the requirements for a court to issue an injunction " in any case involving or growing out of a labor dispute." Cal. Labor Code § 1138.1(a).[1] The SAC also included two important new paragraphs in the section labeled " Parties" :

9. Plaintiff brings this action pursuant to Section 303 of the Labor Management Relations Act (29 U.S.C.A. § 187), hereinafter referred to as the LMRA, to recover damages for an illegal secondary boycott engaged in by the Defendants

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herein, together with the cost of this action. Plaintiff further brings this action pursuant to state-based property laws regarding the unapproved use and trespass on its private property.
. . .
11. Jurisdiction is conferred on this court by the provisions of Section 303 and by 28 U.S.C.A. § 1331. The Court has pendent jurisdiction over Plaintiff's state-based property claims.

The Mall incorporated these paragraphs by reference into each state cause of action.

In September 2011, the district court granted in part and denied in part the Union's Rule 12(b)(6) motion to dismiss all of the Mall's claims. The court granted the motion with respect to the Mall's claims for state-law trespass, private nuisance, and injunctive relief pursuant to of California Labor Code § 1138.1. It denied the motion to dismiss with respect to the cause of action added in Paragraph 9 of the SAC and initially brought pursuant to § 303. It again concluded, quoting Smart, 562 F.3d at 808, that § 303 of the LMRA " 'completely preempts state-law claims related to secondary boycott activities described in § 158(b)(4)' and 'provides an exclusive federal cause of action for the redress of such illegal activity.'"

At that point, the only claim remaining in the suit was the § 303 claim. In January 2012 the district court dismissed the claim against Flores because a § 303 claim cannot be brought against a union member in his individual capacity. See Broadmoor Homes, N. v. Cement Masons, Local 594, 507 F.Supp. 55, 57 (N.D. Cal. 1981). Finally, on July 12, 2012, the district court granted a motion by the Mall to dismiss voluntarily the remaining § 303 claim pursuant to Federal Rule of Civil Procedure 41(a)(2).

On July 31, 2012, the Mall appealed the July 12, 2012 order dismissing the action with prejudice. It " directed" its notice of appeal at all of the district court's previous orders and did not otherwise specify which claims it was appealing. However, in its briefing before us, the Mall clarified that the sole issue presented is whether the district court erred in holding that " a state-law action for trespass and private nuisance is preempted by § 303 of LMRA simply because the invasion of property happened to involve a secondary boycott by a union." It argues that each of the district court's orders stemmed from a misapprehension of this issue and asks that the judgment of the district court be vacated in its entirety. The Mall also asks that the district court be instructed to remand the case to state court.


We review de novo the district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). In reviewing a motion to dismiss pursuant to Rule 12(b)(6), we must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party. Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008). To survive such a motion, a complaint must allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, ...

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