Ward v. Circus Circus Casino , 473 F.3d 994 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHY J. WARD, individually; 
DORA STARNES, individually;
BERTHA GARCIA, individually;
MANUELA PENA, individually;
No. 04-17098
NANCY ESPINOSA, individually;
MARIA PANIAQUA, individually,
Plaintiffs-Appellants,
 D.C. No.
CV-03-01184-PRO
v. OPINION
CIRCUS CIRCUS CASINOS, INC., a
Nevada Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued October 16, 2006
Submitted January 4, 2007
San Francisco, California
Filed January 10, 2007
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Beezer
215
218 WARD v. CIRCUS CIRCUS CASINOS
COUNSEL
Romeo R. Perez, Las Vegas, Nevada, for the plaintiffs-
appellants.
Lionel Sawyer & Collins, Las Vegas, Nevada, for the
defendant-appellee.
WARD v. CIRCUS CIRCUS CASINOS 219
OPINION
BEEZER, Circuit Judge:
We consider whether federal labor law preempts union
members’ state law tort claims. Six employees (the “Work-
ers”) claim their employer, Circus Circus Casinos, Inc.
(“Circus”), committed torts against them. The district court
granted summary judgment in favor of Circus, holding that
the Workers’ claims were preempted by Section 301 of the
Labor Management Relations Act (“LMRA”), the parties’
Collective Bargaining Agreement (“CBA”) and the Nevada
Industrial Insurance Act. The district court also denied the
Workers’ motion to amend their complaint and granted costs
and attorney’s fees in favor of Circus.
We have jurisdiction under 28 U.S.C. § 1291. We reverse
the district court’s grant of summary judgment, affirm the
denial of the motion to amend, and remand with instructions
to remand to state court.
I
During the relevant time period, the Workers were
employed by Circus and were members of a labor union. The
1997-2002 CBA between Circus and Local Joint Executive
Board of Las Vegas governed the Workers’ terms of employ-
ment. The CBA provided that union representatives may com-
municate with employees regarding union business so long as
such activities do “not interfere with the conduct of the
Employer’s business or with the performance of work by
employees during their working hours.” Under the CBA, Cir-
cus had the right to direct and control its employees. Disputes
between Circus and the union regarding the interpretation or
application of these CBA provisions had to be resolved by
arbitration.
On May 3, 2002, Circus employees including the Workers
met during a scheduled work break in the Circus employee
220 WARD v. CIRCUS CIRCUS CASINOS
dining room. The purpose of the meeting was to distribute
leaflets and inform union members of the progress on contract
negotiations. After participants began distributing leaflets,
employee Al Williams stood on a chair and spoke about union
members defending their employment rights. In response,
meeting participants began chanting and shouting phrases
such as “union, yes” and “we want a contract.”
Soon after the chanting began, Circus security guards inter-
rupted the meeting and told the participants to leave. The par-
ticipants instead locked arms in a circle around Williams to
prevent the guards from getting near him. The guards pushed
through the participants, pulled Williams off the chair and
handcuffed him. The Workers allege that in the process the
security guards grabbed, pushed and knocked them down.
In September 2003, the Workers brought an action in
Nevada state court, alleging that Circus was liable for (1)
assault and battery, (2) false imprisonment, (3) intentional
infliction of emotional distress, (4) negligent infliction of
emotional distress, (5) negligent entrustment and (6) negligent
hiring, training and supervision. Circus removed the action to
the United States District Court for the District of Nevada.
The Workers moved to remand to state court, which the dis-
trict court denied. In April 2004, Circus moved for summary
judgment, contending that § 301(a) of the LMRA preempted
the Workers’ claims, that the Workers failed to exhaust their
administrative remedies under the CBA and that the Nevada
Industrial Insurance Act provided the exclusive remedy for
the Workers’ claims. Almost two months after Circus filed its
motion, the Workers moved to amend their complaint to re-
characterize the May 3, 2002, “labor union meeting” as an
“educational session” or similar non-meeting event. The dis-
trict court granted Circus’ motion for summary judgment on
all three grounds and denied the Workers’ motion to amend
as futile and in violation of local rules.
WARD v. CIRCUS CIRCUS CASINOS 221
II
[1] Circus argues that we should dismiss the appeal based
on the Workers’ numerous violations of Federal Rule of
Appellate Procedure 28(a) and Ninth Circuit Rule 30-1.
Numerous and egregious procedural violations may warrant
dismissal of an appeal. See In re O’Brien, 312 F.3d 1135,
1136-37 (9th Cir. 2002) (dismissal warranted by insufficient
record and improper brief format and content). Additional
considerations favoring dismissal may include (1) failure of
the appellant to cure procedural defects and (2) a non-
meritorious appeal. See Han v. Stanford Univ., 210 F.3d 1038,
1040 (9th Cir. 2000) (noting that appellant failed to file reply
brief to cure defects); N/S Corp. v. Liberty Mut. Ins. Co., 127
F.3d 1145, 1146 (9th Cir. 1997) (“[W]e would feel most
uneasy if this were an otherwise meritorious appeal, which
cried out for reversal of the district court’s decisions.”).
[2] The Workers’ appeal is meritorious, and their proce-
dural violations were not so egregious as to prevent Circus
from meaningfully responding to the appeal. We conclude
that these considerations outweigh the gravity of the proce-
dural violations. Our September 25, 2006, order to appellants’
counsel to show cause why sanctions should not be imposed
is hereby discharged.
III
We reverse the district court’s grant of summary judgment
in Circus’ favor. A district court’s grant of summary judgment
is reviewed de novo. Brown v. Lucky Stores, Inc., 246 F.3d
1182, 1187 (9th Cir. 2001). Viewing the evidence in the light
most favorable to the nonmoving party, we determine
“whether the district court correctly applied the relevant sub-
stantive law and whether there are any genuine issues of
material fact.” Id.
[3] A district court’s finding of preemption by § 301 of the
LMRA is an issue of law that we review de novo. Humble v.
222 WARD v. CIRCUS CIRCUS CASINOS
Boeing Co., 305 F.3d 1004, 1008 (9th Cir. 2002). Section 301
preempts state law claims that require the court to interpret a
CBA provision that is reasonably relevant to the resolution of
the dispute. Cramer v. Consol. Freightways, Inc., 255 F.3d
683, 693 (9th Cir. 2001) (en banc). “The plaintiff’s claim is
the touchstone for this analysis; the need to interpret the CBA
must inhere in the nature of the plaintiff’s claim.” Id. at 691.
When the parties do not dispute the meaning of contract
terms, the fact that a CBA will be consulted in the course of
state law litigation does not require preemption. Id. at 690-91.
A defense based on the CBA is alone insufficient to require
preemption. Caterpillar Inc. v. Williams, 482 U.S. 386, 398-
99 (1987); Cramer, 255 F.3d at 690.
[4] For each of the Workers’ claims, the determinative
question “is whether ‘the state law factual inquiry . . . turn[s]
on the meaning of any provision of the collective-bargaining
agreement.’ ” Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir.
1991) (quoting Ackerman v. W. Elec. Co., 860 F.2d 1514,
1517 (9th Cir. 1988)). The Workers bring two types of claims
based on the alleged physical force used against them by the
Circus security guards. The first type directly challenges the
force used and includes claims of assault and battery, inten-
tional infliction of emotional distress and false imprisonment.
The second type involves Circus’ alleged negligence and
includes the Workers’ claims of negligent infliction of emo-
tional distress, negligent entrustment and negligent hiring,
training and supervision.
[5] As to both types of claims, Circus argues that the CBA
must be interpreted to determine whether the Workers’ union
activity interfered with company business and was in viola-
tion of the CBA. The Workers contest the restraint, physical
force and threats used against them by Circus security guards.
Their claims do not depend on an interpretation of permissible
union communications. Even if the Workers’ activities inter-
fered with Circus’ operations or were not permissible under
the CBA, Circus may be liable under state law if the facts sur-
WARD v. CIRCUS CIRCUS CASINOS 223
rounding the guards’ behavior, as alleged by the Workers, are
proved. See Galvez, 933 F.2d at 777 (no need to interpret
CBA because “acts alleged would violate state law irrespec-
tive of the identity of the wrongdoer or of his victim”).1
[6] The CBA also does not set forth procedures for
employee control or authorize the use of threats, physical
force or restraint. CBAs typically do not govern such conduct,
and state claims involving physical threats or force used
against an employee usually are not preempted. See Smith v.
Houston Oilers, Inc., 87 F.3d 717, 720 (5th Cir. 1996)
(“Where the complained-of actions consist entirely of an
employer’s physical battery of an employee, there is no need
for reference to a labor agreement[.]”); Galvez, 933 F.2d at
777 (assault and battery claim not preempted). The Workers’
claims do not require interpretation of the agreement.2 See
Miller v. AT&T Network Sys., 850 F.2d 543, 550 n.5 (9th Cir.
1988) (state tort claims are not preempted “if the particular
CBA does not govern the offending behavior”).
[7] Circus contends that its right to direct and control its
employees pursuant to the CBA requires interpretation and
1
Circus attempts to distinguish Galvez from this case by pointing to the
Workers’ mild injuries, the alleged justification for the Circus guards’
conduct and the connection to union activity. Such considerations do not
resolve the preemption analysis in this case. The crucial inquiry is whether
the Workers’ claims require interpretation of the CBA. See Galvez, 933
F.2d at 776.
2
The cases relied on by Circus are distinguishable because they
involved claims arising out of the implementation of CBA procedures
such as investigation, discipline or discharge. See, e.g., Miller v. AT & T
Network Sys., 850 F.2d 543, 545, 551 (9th Cir. 1988) (involving plaintiff’s
reassignment and dismissal); Williams v. Lear Operations Corp., 73 F.
Supp. 2d 1377, 1382 (N.D. Ga. 1999) (involving employer’s alleged fail-
ure to discipline or discharge harassing co-worker). Circus also relies to
a great extent upon an unpublished decision, Romero v. Hilton Hotels
Corp., 1991 WL 340574, Civ. No. 90-00152 (D. Hawaii June 3, 1991),
which involved claims arising from search and investigation procedures
governed by the CBA.
224 WARD v. CIRCUS CIRCUS CASINOS
amounts to consent by the Workers to the challenged conduct.
To the contrary, Circus’ right to direct and control its employ-
ees cannot reasonably sanction any level of threats, physical
force or restraint, even if the employees’ activities interfere
with company business. Cf. Franchise Tax Bd. of Cal. v. Con-
str. Laborers Vacation Trust, 463 U.S. 1, 25 n.28 (1983)
(“[A] state battery suit growing out of a violent strike would
not arise under § 301 simply because the strike may have
been a violation of an employer-union contract.”), superseded
by statute on other grounds, 28 U.S.C. § 1441(e). The con-
nection between Circus controlling its employees and using
any amount of physical force against them is even more atten-
uated than the connection held to be insufficient in this court’s
en banc Cramer decision. See 255 F.3d at 694-95 (claims
involving hidden video cameras in bathrooms do not fall
within the scope or require interpretation of CBA provision
for using surveillance video).
[8] Circus’ argument constitutes a defense or justification
for the physical force used against the Workers and does not
warrant preemption. See Caterpillar, 482 U.S. at 398-99. For
example, Circus may assert state law defenses concerning a
hotel owner’s right to use reasonable force to remove a tres-
passer or anyone acting in a disorderly manner. The fact that
the CBA may be consulted to determine whether the guards’
behavior was reasonable does not require preemption. See
Cramer, 255 F.3d at 690-91. A state law claim is not pre-
empted simply because it may require consideration of the
same factual issues as a federal labor claim. Lingle v. Norge
Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988); cf. Smith,
87 F.3d at 720 (physical force against employees “is properly
regarded as an issue of state law, not a matter of federal labor
concern”). Circus’ tort liability does not hinge upon whether
the Workers’ activities violated the CBA.
[9] As to the Workers’ negligence based claims, Circus
argues that the CBA must be interpreted to determine the par-
ticular duties of care owed to the Workers. State law negli-
WARD v. CIRCUS CIRCUS CASINOS 225
gence claims are preempted if the duty relied on is “created
by a collective-bargaining agreement and without existence
independent of the agreement.” United Steelworkers v. Raw-
son, 495 U.S. 362, 369 (1990). The Workers do not invoke or
refer to any duty arising from the CBA. The Workers refer
instead to Circus’ duty of care (1) in hiring and entrusting its
security guards to protect its property, and (2) to “all foresee-
able Plaintiffs” in hiring, training and supervising employees.
Circus is “accused of acting in a way that might violate the
duty of reasonable care owed to every person in society.” 495
U.S. at 371. The Workers’ negligence claims do not require
interpretation of the CBA.
[10] We conclude that § 301 of the LMRA does not pre-
empt any of the Workers’ state law claims. The issue whether
the Workers exhausted their remedies under the CBA is moot.
We do not have federal jurisdiction to consider preemption by
the Nevada Industrial Insurance Act. See Galvez, 933 F.2d at
776, 781 (no jurisdiction to consider preemption by Califor-
nia’s Workers’ Compensation Act because no preemption by
LMRA).
Circus argues in the alternative that sections 7 and 8 of the
National Labor Relations Act (“NLRA”) preempts the Work-
ers’ claims. Such preemption, called Garmon preemption
after the Supreme Court’s decision in San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959), does not
alone create federal question jurisdiction. See Hayden v.
Reickerd, 957 F.2d 1506, 1512 (9th Cir. 1991); cf. Caterpil-
lar, 482 U.S. at 398 (NLRA preemption does not provide
basis for removal to federal court). Garmon preemption vests
jurisdiction exclusively in the National Labor Relations
Board. Hayden, 957 F.2d at 1512. The state court must con-
sider whether Garmon preemption controls. See id.
IV
[11] We affirm the district court’s denial of the Workers’
motion for leave to amend their complaint. We review a dis-
226 WARD v. CIRCUS CIRCUS CASINOS
trict court’s denial of a motion to amend a complaint for an
abuse of discretion. Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1087 (9th Cir. 2002). The Workers’ motion to amend
violated the local rules, and the district court may in its discre-
tion deny their motion on that basis alone. See Waters v.
Weyerhaeuser Mortgage Co., 582 F.2d 503, 507 (9th Cir.
1978) (court has discretion to deny motion to amend for fail-
ing to attach proposed pleading as required by local rule). The
proposed amendment also would not have affected jurisdic-
tion. See Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435,
443 (9th Cir. 1991) (overruled on other grounds by Cramer,
255 F.3d at 696) (futility of amendment, among other things,
weighs against allowing leave to amend). The district court
did not abuse its discretion in denying the Workers’ motion
to amend.
V
[12] In light of our resolution of the preemption issue, we
reverse the district court’s order of garnishment awarding Cir-
cus costs and attorney’s fees. Each party shall pay their own
costs and fees.
REVERSED in part, AFFIRMED in part, and
REMANDED with instructions to remand to state court.