Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation v. Unite Here Int'l Union

390 F.Supp.3d 1219

PAUMA BAND OF LUISENO MISSION INDIANS OF the PAUMA AND YUIMA RESERVATION, Plaintiff,

v.UNITE HERE INTERNATIONAL UNION ; State of California; Gavin Newsom, as Governor of the State of California, Defendants.

Case No. 16-cv-2660-BAS-AGS

United States District Court, S.D. California.

Signed June 3, 2019

Filed June 4, 2019

Kevin Michael Cochrane, Cheryl A. Williams, Williams & Cochrane, LLP, San Diego, CA, for Plaintiff.

Kristin L. Martin, David, Cowell & Bowe, LLP, Yonina Etke Alexander, McCracken, Stemerman & Holsberry, LLP, San Francisco, CA, Jennifer T. Henderson, Department of Justice, Sacramento, CA, T. Michelle Laird, Office of the Attorney General, San Diego, CA, for Defendants.

ORDER DENYING MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

[ECF No. 44]

Hon. Cynthia Bashant, United States District Judge

OVERVIEW¹

This action is an offshoot from a bitter labor dispute between a union and a casino operator. Plaintiff Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation ("Pauma" or "Tribe") is a federally-recognized tribe that operates Casino Pauma on its reservation in Northern San Diego County. "About 2,900 customers visit Casino Pauma each day," and the Casino "employs 462 employees." Casino Pauma v. N.L.R.B. , 888 F.3d 1066, 1070 (9th Cir. 2018).

In 2013, Defendant UNITE HERE International Union ("Union"), which represents service and manufacturing employees, began an organizing drive at Casino Pauma. The Tribe claims this organizing effort involved a series of "antics," including the Union inviting The San Diego Union Tribune to a "staged rally." (Proposed Third Am. Compl. ("TAC") ¶¶ 151–54, ECF No. 44-2.) There, the Tribe highlights that a casino employee allegedly spoke "exclusively through a translator" and "explained that she was ‘a cook in the casino's pizza restaurant’ who had a ‘$ 16 hourly salary,’ but nevertheless struggled to pay ‘$ 260 a month for health insurance for her family’ of undisclosed size." (Id. ¶ 154.)

As another tactic, Pauma alleges the Union "went berserk," filing a flurry of unfair labor practice charges against Casino Pauma with the National Labor Relations Board ("NLRB"). (TAC ¶ 5.) Pauma claims that "the one thing that all of these charges have in common is that they seek to turn Casino Pauma into a soapbox for the Union, whereby sympathetic employees can communicate the Union's message directly to customers in any ‘guest area’ of the gaming facility or associated property—whether that is within a shuttle bus, across a restaurant table, inside a family changing room, or underneath a bathroom stall." (Id. )

Ultimately, however, the Union's charges led to the General Counsel of the NLRB filing several administrative complaints against Casino Pauma for unfair labor practices. Casino Pauma v. N.L.R.B. , 888 F.3d at 1071. The General Counsel's allegations included that Casino Pauma had "interfere[ed] with the distribution of union literature by employees near the public entrance to [the] casino," "threaten[ed] employees with discipline for distributing union literature at that location," and "interrogat[ed] an employee about her union activity." Id. at 1071 n.1. After a three-day trial, an administrative law judge determined "Casino Pauma violated the National Labor Relations Act, 29 U.S.C. § 151 et seq. , in most of the ways the General Counsel alleged," and the NLRB affirmed. Id. at 1071 ; see also Casino Pauma (Casino Pauma II) , 363 N.L.R.B. No. 60 (Dec. 3, 2015).

The Tribe and the Union continued their dispute in the Court of Appeals. The NLRB filed a petition for enforcement of its order against Casino Pauma in the Ninth Circuit, the Tribe filed a separate petition for review, and the Union intervened in opposition to Pauma. See Casino Pauma v. N.L.R.B. , 888 F.3d at 1072. The Ninth Circuit rejected the Tribe's challenges and granted the NLRB's petition for enforcement. Id. at 1085. In doing so, the Ninth Circuit upheld the NLRB's "determination that tribe-owned casinos can be NLRA-covered employers," and the court concluded "the NLRA governs the relationship between Casino Pauma and its employees." See id. at 1079.

In the offshoot before this Court, Pauma alleges that by filing the series of unfair labor practice charges directly with the NLRB, the Union has skirted a binding dispute resolution process. (TAC ¶¶ 5, 150–64.) This dispute resolution process is found in a tribal labor ordinance that the State required Pauma to enact to engage in casino-style gaming. (Id. ¶ 2 & n.1.) The Tribe requests that this Court rein in the Union by forcing "arbitration of any open unfair labor practice claims" and ordering the Union to pay Pauma "the costs involved in litigating" the labor charges filed with the NLRB. (Id. Prayer ¶¶ 2–4.) The Union, on the other hand, has argued this ancillary labor dispute is an "improper collateral attack on NLRB proceedings," an effort "to circumvent Ninth Circuit review" of the NLRB's order discussed above, and the product of "procedural gamesmanship." (ECF No. 34-1.)

The Tribe and the Union's dispute has spilled over into this Court because the Tribe is also suing two other defendants—the State of California and Governor Gavin Newsom² (collectively, "State"). Pauma tries to pull the State into the fray by alleging the State has failed to take "reasonable efforts to ensure" the Union would comply with the dispute resolution process, including by failing to "direct[ ] [the Union] to first file any such unfair labor practice claims through" that process, as opposed to proceeding directly before the NLRB. (TAC ¶ 285.)

Previously, the State moved to dismiss this action for lack of subject matter jurisdiction, arguing Pauma failed to demonstrate a justiciable controversy between these two parties. (ECF No. 36.) The Union similarly moved to dismiss for lack of jurisdiction. (ECF No. 34.) The Court granted the motions. (MTD Order 24:21–27.) The Court concluded Pauma's pleading failed to demonstrate a justiciable controversy against the State, and the Court discerned no independent basis to exercise jurisdiction over the Tribe's remaining declaratory relief and breach of contract claims against the Union. (Id. 15:25–24:20.) Consequently, the Court dismissed Pauma's Second Amended Complaint. (Id. 25:9–10.)

Pauma now moves for leave to file a Third Amended Complaint. (ECF No. 44.) The State and the Union oppose.³ (ECF Nos. 45, 46.) Upon review, Pauma's proposed amended pleading does not add any new factual allegations to remedy the defects identified in the Court's prior order. And the Tribe's renewed legal arguments remain unpersuasive. Consequently, the Court DENIES Pauma's motion.

BACKGROUND

Pauma claims this case turns on a model tribal ordinance that is an addendum to a tribal-state gaming compact. Pauma and the State of California entered into this gaming compact under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 – 21. Hence, the Court first provides a brief overview of IGRA before expanding upon the Tribe's allegations.

I. Indian Gaming Regulatory Act

"In 1988, Congress attempted to strike a delicate balance between the sovereignty of states and federally recognized Native American tribes by passing IGRA." Pauma Band of Luiseno Mission Indians of Pauma & Yuima Reservation v. California , 813 F.3d 1155, 1160 (9th Cir. 2015). IGRA's general purpose is "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1).

To accomplish this purpose, IGRA "creates a framework for regulating gaming activity on Indian lands." Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 785, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) (citing 25 U.S.C. § 2702(3) ). "The Act divides gaming on Indian lands into three classes—I, II, and III." Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). IGRA then "assigns authority to regulate gaming to tribal and state governments depending on the class of gaming involved." Big Lagoon Rancheria v. California , 789 F.3d 947, 949 (9th Cir. 2015) (en banc).

The final category—Class III gaming—"includes the types of high-stakes games usually associated with Nevada-style gambling." In re Indian Gaming Related Cases , 331 F.3d 1094, 1097 (9th Cir. 2003) (" Coyote Valley "). "As a result, Class III gaming is subjected to the greatest degree of control under IGRA's regulations." Pauma v. California , 813 F.3d at 1160. A tribe may conduct Class III gaming "only if such activities are conducted pursuant to a Tribal-State Compact entered into by the tribe and a state that permits such gaming, and the Compact is approved by the Secretary of the Interior." Id. (citing Coyote Valley , 331 F.3d at 1097 ); see also 25 U.S.C. § 2710(d)(1), (3)(B). Thus, IGRA contemplates that a tribe and the relevant state shall negotiate to enter into a compact that (i) permits Class III gaming and (ii) may address various regulatory issues related to this type of gaming. See 25 U.S.C. § 2710(d)(3)(A), (C) (identifying the permissible gaming compact topics to include standards for "maintenance of the gaming facility" and "licensing").

II. Pauma's Compact with the State

Historically, Pauma's members "relied upon subsistence farming and federal funding to stave off destitution." (TAC ¶ 111.) In 2000, Pauma sought to improve its members' circumstances by opening a tribal gaming facility. (See id. ¶¶ 111–16.) To do so, the Tribe entered into a tribal-state gaming compact with the State of California under IGRA. (Tribal-State Compact Between the State of California and the Pauma Band of Mission Indians ("Pauma Compact"), Second Amended Complaint ("SAC") Ex. 1, ECF No. 33-1.⁴ )

The terms of the Pauma Compact are not unique. In 1999, the State of California and numerous tribes negotiated a form compact—the "1999 Compact." See Coyote Valley , 331 F.3d at 1101–07 (detailing...