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

• Decision Date: 23 September 2014
• Docket Number: No. 12–56427.,12–56427.
• Citation: 768 F.3d 938
• Parties: The RETAIL PROPERTY TRUST, a Massachusetts business trust, Plaintiff–Appellant, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; Carpenters Local Union No. 803; James Flores, an individual, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

768 F.3d 938

The RETAIL PROPERTY TRUST, a Massachusetts business trust, Plaintiff–Appellant,

v.UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; Carpenters Local Union No. 803; James Flores, an individual, Defendants–Appellees.

No. 12–56427.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 2013.

Filed Sept. 23, 2014.

Stacey McKee Knight (argued) and Pamela Tsao, Katten Muchin Rosenman LLP, Los Angeles, CA; 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, CA, for Defendants–Appellees.

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

Before: RONALD M. GOULD and JAY S. BYBEE, Circuit Judges, and EDWARD M. CHEN, District Judge.^*

OPINION

BYBEE, Circuit Judge:

In this case we must decide whether § 303 of the Labor Management Relations 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, 98 S.Ct. 1745. 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.

I. FACTS

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 (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 alsoCalif. 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.”

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, 84 S.Ct. 1253; 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'demands.” Id. at 627 n. 16, 87 S.Ct. 1250 (quoting Int'l Bhd. of Elec. Workers, Local 501 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 Int'l 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...