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Desert Sun Enterprises Ltd. v. International Brotherhood of Electrical Workers Local Union 357

United States District Court, District of Nevada

January 23, 2015

DESERT SUN ENTERPRISES LIMITED /d/b/a/ CONVENTION TECHNICAL SERVICES, a Nevada limited-liability company, Plaintiff,




The instant case arises from an alleged unlawful secondary boycott. Plaintiff Desert Sun Enterprises Limited d/b/a Convention Technical Services (“CTS”) filed a complaint alleging that Defendant International Brotherhood of Electrical Workers, Local Union 357 (“Local 357”) engaged in unlawful secondary activity under 29 U.S.C. 158(b) when it threatened an area standards strike with the improper intent of forcing neutral third parties to cease doing business with CTS and to coerce CTS to replace International Union of Operating Engineers, Local 501 (“Local 501”) employees with Local 357 employees. Local 357 then filed the instant motion to dismiss under FRCP 12(b)(6), claiming that CTS has failed to allege sufficient facts to show that Local 357 plausibly committed an unlawful secondary boycott. Because the Court finds that CTS has stated a claim for unlawful secondary boycott, Local 357’s motion is denied.


The following background information is taken from CTS’s amended complaint. Am. Compl., ECF No. 5. The ABC Kids Expo (“Expo”) was scheduled to take place October 15-18, 2013, at the Las Vegas Convention Center. Id. ¶ 9. Fern Exposition Services (“Fern”) was the official general services contractor for the show. Id. Fern contracted with CTS to provide portable electrical power to the exhibitors at the show. Id. at ¶ 15. CTS then hired electrical technicians from Local 501 to perform the portable electrical work pursuant to the parties’ 2009 labor agreement. Id. ¶ 19. Members of the International Brotherhood of Teamsters, Local 631 (“Teamsters 631”) were hired to install and dismantle the individual booths at the show, and Teamsters 631 employees constituted the largest workforce on the show floor. Id. ¶¶ 16-17.

On October 9, 2013, by letter sent to the Southern Nevada Building and Trades Council (“Trades Council”), Local 357 requested an area standards strike sanction against CTS, and the Trades Council approved the request. Id. ¶ 20, 22. CTS also sent a copy of the strike sanction request to the Las Vegas Convention and Visitor’s Authority. Id. ¶ 20. That afternoon, a business representative of Teamsters 631 told representatives of Fern, representatives of CTS, and others that the Trades Council had approved Local 357’s request for a strike sanction. Id. ¶ 23. The Teamsters 631 representative also informed Fern and CTS that Local 357 “would establish a picket line at the Convention Center that night and that Teamsters 631 would honor it by telling its members they could cross or not cross as they saw fit.” Id. ¶ 23. Fern was concerned about delaying or losing the Expo, so it instructed CTS to terminate the Local 501 employees. Id. ¶ 25. Fern then replaced the Local 501 employees with Freeman Electrical’s employees, who were members of Local 357. Id. As a result, CTS was forced to reimburse Fern for its labor cost of using Local 357 employees. Id. This reimbursement cost was higher than the cost would have been had CTS been able to use Local 501 employees as it had planned. Id.

CTS alleges that Local 357 engaged in a secondary boycott in violation of 29 U.S.C. § 158(b). CTS claims that Local 357 threatened to picket with the unlawful intent of coercing or restraining neutral third parties, including the Convention Center, ABC, and Fern, from doing business with CTS and forcing Fern to assign the portable electrical work to Local 357 employees instead of Local 501 employees. Local 357 now moves to dismiss.


An initial pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but merely asserting “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In elaborating on the pleading standard described in Twombly and Iqbal, the Ninth Circuit has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In sum, at the motion to dismiss stage, “[t]he issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Cervantes v. City of San Diego, 5 F.3d 1273, 1274-75 (9th Cir. 1993) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (emphasis in original).

“As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation and internal quotation marks omitted). If the district court relies on materials outside the pleadings submitted by either party to the motion to dismiss, the motion must be treated as a Rule 56 motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Two exceptions to this rule exist: First, the court may consider extrinsic material “properly submitted as part of the complaint, ” meaning documents either attached to the complaint or upon which the plaintiff’s complaint necessarily relies and for which authenticity is not in question. Lee, 250 F.3d at 688 (citation omitted). Second, the court “may take judicial notice of matters of public record.” Id. (citation and internal quotation marks omitted).


In addition to the pleadings, the Court will consider Local 357’s request for a strike sanction. ECF No. 5 Ex. 1. Because the letter was “properly submitted as part of the complaint, ” the Court may do so without converting the instant motion into a Rule 56 motion for summary judgment. Lee, 250 F.3d at 688. The Court declines, however, to take judicial notice of the exhibits ...

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