Date: 01-16-2007

Case Style: Kathy J. Ward, et al. v. Circus Circus Casino, Inc.

Case Number: 04-17098

Judge: Robert R. Beezer

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Nevada, Clark County

Plaintiff's Attorney:

Romeo R. Perez, Las Vegas, Nevada, for the plaintiffsappellants.

Defendant's Attorney:

Lionel Sawyer & Collins, Las Vegas, Nevada, for the defendant-appellee.

Description:

We consider whether federal labor law preempts union members' state law tort claims. Six employees (the "Workers") 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 employment. The CBA provided that union representatives may communicate 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, Circus 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 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 interrupted the meeting and told the participants to leave. The participants 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 district 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 recharacterize the May 3, 2002, "labor union meeting" as an "educational session" or similar non-meeting event. The district 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.

* * *

Outcome: REVERSED in part, AFFIRMED in part, and REMANDED with instructions to remand to state court.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None