Ilwu v. Mark Nelson , 599 F. App'x 701 ( 2015 )

FILED
NOT FOR PUBLICATION APR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL LONGSHORE AND No. 13-35364
WAREHOUSE UNION and LOCAL 21,
INTERNATIONAL LONGSHORE AND D.C. No. 3:11-cv-05767-RBL
WAREHOUSE UNION,
Plaintiffs - Appellants, MEMORANDUM*
v.
MARK S. NELSON, et al.,
Defendants - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted February 4, 2015
Seattle, Washington
Before: FISHER, BEA, and MURGUIA, Circuit Judges.
Plaintiffs appeal from summary judgment granted in favor of Defendants
Cowlitz County, City of Longview, and individually named law-enforcement
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
officials. We review de novo. Acosta v. City of Costa Mesa, 718 F.3d 800, 822
(9th Cir. 2013). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The
Union lacks standing to sue on its own behalf and lacks standing to sue for
damages on behalf of its members. Furthermore, its claims for prospective
injunctive relief on behalf of its members have become moot.
First, the Union asserts organizational standing. To establish standing,
organizations, like individuals, must satisfy the requirements of three elements: (1)
injury-in-fact, (2) causation, and (3) redressability. La Asociacion de Trabajadores
de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “An
organization suing on its own behalf can establish an injury when it suffered ‘both
a diversion of its resources and a frustration of its mission.’” Id. (quoting Fair
Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). ILWU contends that
its members were systematically arrested in retaliation for exercising their First
Amendment rights. ILWU attempts to satisfy the injury-in-fact element by arguing
that it diverted considerable resources away from a labor dispute to deal with the
retaliatory arrests. However, it failed to allege this injury in its complaint. Instead,
it asserted the diversion of resources only in a declaration in support of its
opposition to summary judgment. Such a declaration cannot retroactively confer
standing to ILWU. See id. (“Without making any attempt to allege organizational
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standing in its complaint, [the] provision of affidavits and declarations supporting
organizational standing at the summary judgment stage is ineffectual.”). Thus, the
Union lacks organizational standing.
Second, ILWU asserts claims for damages on behalf of its members. ILWU
lacks associational standing to bring these claims. “[A]n association has standing
to bring suit on behalf of its members when: [1] its members would otherwise have
standing to sue in their own right; [2] the interests it seeks to protect are germane
to the organization’s purpose; and [3] neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Hunt v.
Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977). The Union’s
claims for damages run afoul of the third prong, because those claims require the
participation of individual members. See, e.g., Warth v. Seldin, 422 U.S. 490,
515–16 (1975) (“[W]hatever injury may have been suffered is peculiar to the
individual member concerned, and both the fact and extent of injury would require
individualized proof.”).
Third, ILWU seeks prospective injunctive relief on behalf of union members
who might be detained in the future. These claims are moot. The probability of
detention no longer exists: the arrests occurred allegedly in retaliation for the
Union’s protests targeted at organizing the workers’ warehouse, but the statutes of
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limitation have run for the misdemeanors committed during those protests. See
Wash. Rev. Code Ann. § 9A.04.080(1)(i), (j). Furthermore, the record is
undisputed that the Union has since organized the warehouse it was picketing to
organize, and the Union has not shown that its members have committed or might
commit other offenses in the course of future protests. See Los Angeles Cnty. v.
Davis, 440 U.S. 625, 631 (1979) (“‘Simply stated, a case is moot when the issues
presented are no longer “live” or the parties lack a legally cognizable interest in the
outcome.”’ (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969))).
Appellants’ motion to take judicial notice is denied.
AFFIRMED.
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