Solis v. National Emergency Medical Services Association

Filing 53

ORDER Re: Motion To Dismiss (Docs. 38 and 49 ), signed by Chief Judge Anthony W. Ishii on 8/12/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,

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Plaintiff,
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v.
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NATIONAL EMERGENCY MEDICAL )
SERVICES ASSOCIATION,
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Defendant.
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____________________________________ )

CASE NO. 1:11-CV-0529 AWI GSA
ORDER RE: MOTION TO DISMISS

(Docs. 38 and 49)

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Defendant has made a motion to dismiss for lack of subject matter jurisdiction, or in the

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alternative for failure to state a claim. Plaintiff opposes the motion. Subject matter jurisdiction

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exists in this case. Plaintiff’s request to have Gambone installed as NEMSA president is

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dismissed but the balance of Plaintiff’s claims survives. Plaintiff is granted leave to amend.

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I. History
Plaintiff Department of Labor (“DOL”) is representing James Gambone (“Gambone”)

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who is seeking to become the president of the board of directors of Defendant National

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Emergency Medical Services Association (“NEMSA”), a union of emergency medical

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technicians (“EMT”) headquartered in Modesto, California. Gambone was an EMT working for

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third party American Medical Response (“AMR”). In 2006, NEMSA hired Gambone part time

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to organize his co-workers. After NEMSA was certified to represent AMR’s workers, Gambone
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worked simultaneously for NEMSA and AMR until August 29, 2007 when he was fired by

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AMR. NEMSA, on behalf of Gambone, challenged the termination with the National Labor

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Relations Board (“NLRB”), alleging the termination was in retaliation for protected union

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activity. In the interim, Gambone worked for NEMSA full time. Whether Gambone ever

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became a member of the NEMSA union is a disputed fact.

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NEMSA scheduled elections to be held during the summer of 2010 for the positions of

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president and secretary of the board of directors of NEMSA. The term of office in three years.

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Gambone, seeking to be put on the ballot, submitted paperwork nominating himself as president.

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NEMSA refused to include Gambone on the ballot arguing that Gambone did not meet the

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eligibility requirements. Gambone then launched a write-in campaign. The ballots were sent out

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with directions that they had to be received by July 9, 2010. On July 12, 2010, the ballots were

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counted. Also running for president were Larry Lucas (“Lucas”) and Torren Colcord

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(“Colcord”), the incumbent president. NEMSA did not count the ballots in which members

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wrote in Gambone’s name and declared Lucas the winner, asserting that NEMSA’s bylaws do

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not provide for the acceptance of write-in votes. Gambone wrote NEMSA on July 19, 2010 to

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contest the results. NEMSA rejected Gambone’s challenge. NEMSA recounted the ballots on

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July 30, 2010 and again declared Lucas the winner.

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Meanwhile, Gambone, as an employee of NEMSA, organized a new union of NEMSA

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employees, the NEMSA Representatives Employee Association (“REA”). While NEMSA is a

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union itself, NEMSA employees (distinct from EMTs who are members of the NEMSA union

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and work for third parties like AMR) formed REA. Gambone became interim president of REA

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and filed a petition with the NLRB seeking certification on May 3, 2010. NEMSA offerred to

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recognize the REA by letter dated May 5, 2010. NEMSA then fired Gambone on May 10, 2010.

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On August 2, 2010, Gambone sought arbitration of the election dispute in accord with

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NEMSA bylaws. On August 24 and 15, 2010, Gambone and NEMSA took part in an arbitration

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hearing which took place at NEMSA’s headquarters. NEMSA objected to the arbitrability of the

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dispute, arguing that Gambone was not a NEMSA union member covered by the bylaws. Upon

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the arbitrator’s announcement of a preliminary conclusion that the dispute was arbitrable,
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NEMSA withdrew from the proceedings and ordered the arbitrator and Gambone to vacate the

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premises. The arbitration proceeded at another location without NEMSA’s participation. On

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September 2, 2010, the arbitrator found in favor of Gambone and ordered his installation as

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president of NEMSA. Thereafter, Gambone resigned as interim president of REA. Sometime

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after the arbitration award, Gambone and allied NEMSA union members took control of

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NEMSA headquarters for a few days before Colcord had him evicted from the building. Lucas

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resigned as president of NEMSA on December 8, 2010. NEMSA’s board of directors appointed

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Eric Stephens, the then vice president, as president.

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Meanwhile, Gambone filed a complaint with DOL on September 27, 2010. DOL

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investigated the matter. DOL’s tabulation of the presidential election ballots concluded that

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Gambone received 205 votes compared with Lucas’s 128 votes and Colcord’s 111 votes. At an

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unspecified date, NEMSA filed suit in Stanislaus County Superior Court against Gambone and

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the other individuals who took over the headquarters, alleging (among other claims) theft,

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trespass, and breach of fiduciary duties. The state court case was stayed on November 9, 2010

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pending DOL action.

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DOL brought this present suit on March 28, 2011, under Title IV of the Labor-

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Management Reporting and Disclosure Act (“LMRDA”), alleging NEMSA violated union

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election procedures set out in 29 U.S.C. §481. DOL’s operative complaint, the first amended

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complaint (“FAC”), seeks to have Gambone installed as NEMSA president or, in the alternative,

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for new elections under DOL supervision. Doc. 23, Part 2. DOL also filed a motion for

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preliminary injunction seeking to have Gambone installed as president pending resolution of the

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case. Doc. 4. This court denied the motion, ruling that Title IV did not allow for installation of

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Gambone as interim relief. Doc. 35. Subsequent to that ruling, on June 24, 2011, the NLRB

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made a final determination that Gambone was not improperly fired by AMR. Doc. 47, Ex. 1.

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On June 10, 2011, NEMSA moved to dismiss for lack of subject matter jurisdiction, or in

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the alternative for failure to state a claim, arguing that Gambone can not be installed as NEMSA

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president for a variety of reasons. Doc. 38. DOL opposed the motion, noting the recent NLRB

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ruling. Doc. 45. In reply, NEMSA argued that the NLRB decision was an additional reason why
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Gambone could not be installed as NEMSA president. Doc. 46. The matter was taken under

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submission without oral argument.

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Subsequent to that order, DOL has requested leave to amend. Doc. 49. DOL no longer

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seeks to have Gambone installed as NEMSA president. NEMSA opposes leave to amend as it

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does not resolve all of its motion to dismiss arguments. Doc. 50. To satisfy NEMSA’s concerns,

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the court addresses the motion to dismiss on the merits.

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II. Legal Standards

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Federal Rule Civil Procedure 12(b)(1) allows for a motion to dismiss based on lack of

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subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited

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jurisdiction. Vacek v. UPS, 447 F.3d 1248, 1250 (9th Cir. 2006). Limits upon federal

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jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437

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U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case unless

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the contrary affirmatively appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003);

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General Atomic Co. v. United Nuclear Corp., 655 F.2d 968 (9th Cir. 1981). The plaintiff has the

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burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may be either facial, where the inquiry is

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confined to the allegations in the complaint, or factual, where the court is permitted to look

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beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.

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2004).

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When a defendant makes a factual challenge “by presenting affidavits or other evidence

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properly brought before the court, the party opposing the motion must furnish affidavits or other

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evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air For

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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the

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truthfulness of the plaintiff’s allegations under a factual attack. White v. Lee, 227 F.3d 1214,

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1242 (9th Cir. 2000). Where the jurisdictional issue and the merits of the case are not factually

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completely intermeshed or intertwined, the court may consider the evidence presented with

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respect to the jurisdictional issue and rule on that issue, including resolving factual disputes when
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necessary. St. Clair v. Chico, 880 F.2d 199, 201-02 (9th Cir. 1989).
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the

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plaintiff’s “failure to state a claim upon which relief can be granted.” A dismissal under Rule

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12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient

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facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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2001). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

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factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do. Factual allegations must be enough to raise a right to relief above the

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speculative level, on the assumption that all the allegations in the complaint are true (even if

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doubtful in fact)....a well-pleaded complaint may proceed even if it strikes a savvy judge that

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actual proof of those facts is improbable” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56

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(2007), citations omitted. “[O]nly a complaint that states a plausible claim for relief survives a

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motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the

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Court of Appeals observed, be a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense. But where the well-pleaded facts do not permit the

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court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it

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has not shown that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950

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(2009), citations omitted. The court is not required “to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The court must also assume that “general

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allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Nat’l

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Wildlife Fed’n, 497 U.S. 871, 889 (1990), citing Conley v. Gibson, 355 U.S. 41, 47 (1957),

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overruled on other grounds at 127 S. Ct. 1955, 1969. Thus, the determinative question is

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whether there is any set of “facts that could be proved consistent with the allegations of the

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complaint” that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A., 534 U.S.

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506, 514 (2002). At the other bound, courts will not assume that plaintiffs “can prove facts

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which [they have] not alleged, or that the defendants have violated...laws in ways that have not
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been alleged.” Associated General Contractors of California, Inc. v. California State Council of

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Carpenters, 459 U.S. 519, 526 (1983).

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In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited

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to reviewing only the complaint. “There are, however, two exceptions....First, a court may

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consider material which is properly submitted as part of the complaint on a motion to dismiss...If

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the documents are not physically attached to the complaint, they may be considered if the

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documents’ authenticity is not contested and the plaintiff’s complaint necessarily relies on them.

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Second, under Fed. R. Evid. 201, a court may take judicial notice of matters of public record.”

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Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), citations omitted. The Ninth

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Circuit later gave a separate definition of “the ‘incorporation by reference’ doctrine, which

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permits us to take into account documents whose contents are alleged in a complaint and whose

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authenticity no party questions, but which are not physically attached to the plaintiff’s pleading.

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We have extended the ‘incorporation by reference’ doctrine to situations in which the plaintiff’s

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claim depends on the contents of a document, the defendant attaches the document to its motion

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to dismiss, and the parties do not dispute the authenticity of the document, even though the

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plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel v.

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ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), citations omitted. “[A] court may not look beyond

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the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a

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defendant’s motion to dismiss. Facts raised for the first time in opposition papers should be

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considered by the court in determining whether to grant leave to amend or to dismiss the

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complaint with or without prejudice.” Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003),

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citations omitted.

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If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without

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prejudice, and with or without leave to amend. “[A] district court should grant leave to amend

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even if no request to amend the pleading was made, unless it determines that the pleading could

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not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th

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Cir. 2000) (en banc), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other

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words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX,
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Inc., 298 F.3d 893, 898 (9th Cir. 2002).

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III. Discussion
DOL has filed suit pursuant to 29 U.S.C. §482 which states that when a union election

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violates the rules set out in 29 U.S.C. §481, DOL may “bring a civil action against the labor

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organization as an entity in the district court of the United States in which such labor

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organization maintains its principal office to set aside the invalid election, if any, and to direct

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the conduct of an election or hearing and vote upon the removal of officers under the supervision

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of the Secretary and in accordance with the provisions of this title [29 U.S.C. §§481 et seq.] and

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such rules and regulations as the Secretary may prescribe.” 29 U.S.C. §482(b). NEMSA argues

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there is no subject matter jurisdiction because Gambone can not be installed as NEMSA

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president for three reasons. First, Gambone has influence in REA as a past president. If he were

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to become NEMSA president, he would represent management, whose interests are often in

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opposition to REA. Such a situation could violate 29 U.S.C. §158(a) which seeks to insulate

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unions from management meddling. Second, the plain terms of 29 U.S.C. §482 specify that

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relief constitutes new elections run by DOL and not direct installation of the DOL’s preferred

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candidate. Third, the NLRB’s recent ruling removes Gambone’s status as a member in good

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standing of the NEMSA union, rendering him unable to assume the office of NEMSA president.

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NEMSA has provided the NLRB’s final ruling finding that AMR’s firing of Gambone was not

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motivated by anti-union retaliation. Doc. 47, Ex. 1. The NLRB’s decision is judicially noticed as

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a fact capable of accurate and ready determination under Fed. R. Civ. Proc. 201.

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As a preliminary manner, DOL “notes that it has requested, as an alternative remedy, that

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the court order a new election under the Department’s supervision....NEMSA’s argument that the

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remedy of installation is unavailable cannot provide a basis for dismissing the entire complaint.”

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Doc. 45, Opposition, at 9:25-28 n.2. DOL is correct; subject matter jurisdiction exists based on

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the plain text of 29 U.S.C. §482. Apart from installing Gambone, DOL has an interest in

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conducting a new election if 29 U.S.C. §481 was violated. See Marshall v. Teamsters Steel

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Haulers, 1979 WL 15500, *1 (W.D. Pa., Aug. 16, 1979) (complaining union member no longer
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eligible to hold office but case continues to determine if new elections necessary). Regarding the

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requested relief of installation, NEMSA’s first argument has already been analyzed and

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dismissed in the order denying the preliminary injunction. NEMSA’s second argument is legally

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complex and need not be addressed as the third argument definitively shows that Gambone is not

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eligible to be NEMSA president based on the parties’ representations.

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As DOL states, “Defendant’s Constitution, Article VI, Section 3, states that a ‘member in

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good standing for a minimum of twenty-four (24) consecutive months as of the date he/she will

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take office...’ may serve as President....Defendant’s Constitution, Article IV, Section 1(A) states,

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‘Regular members who are terminated or suspended from employment by their employers, and

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whose terminations or suspensions are under appeal shall not lose their status as Regular

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members solely by virtue of their terminations or suspensions from employment.’” Doc. 23, Part

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2, FAC, at 3:20-22 and 4:3-6. DOL is seeking to enforce 29 U.S.C. §481(e) which requires, in

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relevant part, that “every member in good standing shall be eligible to be a candidate and to hold

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office.” With the loss of the NLRB appeal, Gambone is no longer a member in good standing of

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NEMSA and thus is no longer eligible to be NEMSA president. DOL implicitly recognizes this

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problem in its statement that “The pending status of [the NLRB appeal] during the 2010 election

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is the basis for the Department’s determination that NEMSA improperly found that Gambone

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was no longer a union member and thus not eligible to run for union office. While this new

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development does not affect the Department’s position that NEMSA’s 2010 election for the

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office of President violated the LMRDA, it may affect the appropriateness of installing Gambone

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at this time. The Department is assessing whether to modify its request for relief.” Doc. 45,

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Opposition, at 2:25-28 n.1. DOL proposed second amended complaint implicitly recognizes that

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the relief sought is no longer available.

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IV. Order

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Defendant NEMSA’s motion to dismiss for lack of subject matter jurisdiction is

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DENIED. Defendant NEMSA’s motion to dismiss for failure to state a claim is GRANTED in

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part and DENIED in part. DOL’s requested relief that Gambone be installed as NEMSA
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president is DISMISSED without prejudice. DOL’s proposed second amended complaint

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appears to consonant with the rulings of this Order. DOL’s request for leave to amend is

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GRANTED.

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IT IS SO ORDERED.

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Dated:
0m8i78

August 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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