Laborers' International Union North America, Local 872 v. City of Las Vegas et al

Filing 72

ORDER Granting 48 , 49 Motions to Dismiss. Signed by Judge Richard F. Boulware, II on 3/31/2021. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LABORERS’ INTERNATIONAL UNION
NORTH AMERICA, LOCAL 872, et al.,

Case No. 2:19-cv-00322-RFB-NJK

Plaintiffs,

ORDER

v.
CITY OF LAS VEGAS, et al.,

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Motion to Dismiss Amended Complaint
Defendants.

(ECF Nos. 48 & 49)

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I.

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Before the Court are Defendant City of Las Vegas’ Motion to Dismiss Amended Complaint

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(ECF No. 48) and Defendants James Robert Coffin and Steve Seroka’s Motion to Dismiss

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Amended Complaint (ECF No. 49).

INTRODUCTION

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II.

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On February 22, 2019, Plaintiff filed the Complaint. ECF No. 1. On February 11, 2020, the

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Court held a hearing regarding Defendants Coffin and Seroka’s Motion to Dismiss Complaint

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(ECF No. 11) and Defendant City of Las Vegas’ Motion to Dismiss Complaint (ECF No. 21). ECF

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No. 35. For reasons stated on the record, the Court granted the two Motions to Dismiss (ECF Nos.

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11, 21) and granted Plaintiff leave to file an amended complaint 21 days after the entry of the

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order. ECF No. 35. On March 3, 2020, Plaintiffs filed the First Amended Complaint. ECF No. 37.

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The Amended Complaint added inter alia, Thomas M. White as a Plaintiff and set forth the same

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seven claims for relief as the initial Complaint. White is a member of Plaintiff Laborers’

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International Union North America, Local 872.

PROCEDURAL HISTORY

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On April 7, 2020, Defendants filed Motions to Dismiss the Amended Complaint. ECF Nos.

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48, 49. On April 7, 2020, Defendants filed joinders to each other’s Motion to Dismiss. ECF Nos.
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51, 52. On April 17, 2020, Magistrate Judge Koppe issued an order granting a stay in discovery

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pending resolution of the pending Motions to Dismiss. ECF No. 57. On May 8, 2020, Plaintiffs

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responded to Defendants’ opposition to the Motion to Dismiss. ECF Nos. 61, 62. On May 14,

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2020, Defendant City of Las Vegas replied. ECF No. 63. On May 18, 2020, Defendant Coffin and

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Seroka replied. ECF No. 65. On May 20, 2020, Defendants filed joinders to each other’s replies.

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ECF Nos. 67, 68. On February 22, 2021, a hearing was held regarding the Motions to Dismiss

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Amended Complaint (ECF Nos. 48, 29). ECF No. 70. Below is the written order.

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III.

ALLEGED FACTS

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Fore Stars, Ltd., 180 Land Co., LLC, and Seventy Acres, LLC (“Landowners”) collectively

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own 250 acres of real property (“Subject Property”). ECF No. 37 at 4-5. The Subject Property

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abuts a common interest community known as Queensridge. Id. at 6. On December 2016, a golf

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course operator that leased the Subject Property vacated the land. Id. at 7. The Clark County

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Assessor determined the Subject Property no longer fell within the definition of open-space real

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property as dictated by NRS 361A.040 and that it would be converted to a higher use in accordance

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with NRS 361A.031. Id. On November 30, 2017, these determinations were approved by the State

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of Nevada Board of Equalization. Id.

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Previously, on August 15, 2001, the Las Vegas City Council approved Bill No. Z-2001-1

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Ordinance No. 5353 zoning Parcels 1-10 of the Subject Property as R-PD7, which indicates a

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zoning designation as a residential planned development district. Id. at 9. Since 2015, the

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Landowners have filed applications with the City of Las Vegas relating to development and use of

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the Subject Property. Id. at 12. Homeowners living in Queensridge opposed the development. Id.

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Plaintiff Union alleges that it has a valid and enforceable contract, called the Project Labor

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Agreement (PLA), with Hardstone Construction, LLC which provides for Plaintiff’s services and

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work force in the development of the Subject Property. Id. at 12-13. Plaintiff argues, inter alia, that

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the PLA has been “effectively blocked” by the City Council’s denial for development. Id. at 16.

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Therefore, Plaintiffs assert seven causes of action, including a Fifth Amendment takings violation

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and a 42 U.S.C. § 1983 due process claim against Defendants.

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IV.

LEGAL STANDARD

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An initial pleading must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for failing to

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state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a motion to

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dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and

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are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs.,

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Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

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To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,”

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but it must do more than assert “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action....” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains

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“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”

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meaning that the court can reasonably infer “that the defendant is liable for the misconduct

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alleged.” Id. at 678 (internal quotation and citation omitted). The Ninth Circuit, in elaborating on

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the pleading standard described in Twombly and Iqbal, has held that for a complaint to survive

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dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences

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from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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V.

DISCUSSION

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The Court begins by addressing Defendants’ argument that Plaintiffs lack standing.

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Defendant City of Las Vegas argues that Plaintiffs do not have standing because they are

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improperly bringing claims of third parties, such as those of the Landowners, when the third parties

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do not have a close relationship with Plaintiffs and can initiate a lawsuit themselves. ECF Nos. 48,

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63. Moreover, there is no allegation of a First Amendment violation, Plaintiffs do not own the

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Subject Property or rights to develop it, and Plaintiff Union is not stating that they are suing in a

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representative capacity on behalf of its members. Id. Defendants Coffin and Seroka argue that

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Plaintiff Union do not have standing because Plaintiff “at best, is a party to an agreement with a

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potential contractor who is, at most, a third-party beneficiary of any development of [the Subject
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Property].” ECF No. 49 at 8; ECF No. 65. With respect to the added Plaintiff Mr. Thomas White,

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Defendants argue that he is not a common laborer and that there is no evidence that he is employed

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or has any ties to the project at issue. Id.

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The Court agrees with Defendants and finds that the Motions to Dismiss (ECF Nos. 48,49)
must be granted as Plaintiffs lack standing.
A.

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Standing

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Federal courts are courts of limited jurisdiction, and possess power only as authorized by

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the Constitution and by statute. Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (citation omitted).

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Subject-matter jurisdiction does not exist if the plaintiff's action is moot or if the plaintiff

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lacks standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). If the court

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determines that it does not have subject matter jurisdiction, it must dismiss the case. Fed. R. Civ.

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P. 12(h)(3).

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If subject matter jurisdiction is challenged, the burden is on the party asserting jurisdiction

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to establish it. In re Dynamic Random Access Memory Antitrust Litigation, 546 F.3d 981, 984

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(9th Cir.2008) (citations omitted). Dismissal under Rule 12(b)(1) is appropriate if the complaint,

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considered in its entirety, fails to allege facts on its face that are sufficient to establish subject

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matter jurisdiction. Id. at 984–85.

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The party invoking federal jurisdiction must establish three elements to assert standing.

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Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an

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‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized,

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and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal

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connection between the injury and the conduct complained of—the injury has to be fairly ...

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trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent

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action of some third party not before the court. Third, it must be ‘likely,’ as opposed to merely

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‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 560-61 (internal

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quotations and citations omitted). “When, however, as in this case, a plaintiff’s asserted injury

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arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else,

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much more is needed. In that circumstance, causation and redressability ordinarily hinge on the
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response of the regulated (or regulable) third party to the government action or inaction—and

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perhaps on the response of others as well. The existence of one or more of the essential elements

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of standing depends on the unfettered choices made by independent actors not before the courts

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and whose exercise of broad and legitimate discretion the courts cannot presume either to control

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or to predict, and it becomes the burden of the plaintiff to adduce facts showing that those choices

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have been or will be made in such manner as to produce causation and permit redressability of

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injury. Thus, when the plaintiff is not himself the object of the government action or inaction he

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challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.”

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Id. at 562 (internal quotations and citations omitted) (emphasis in the original).

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Here, Plaintiffs have not adequately alleged injury in fact, and so do not establish standing

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to invoke the Court’s jurisdiction. Plaintiffs fail to state a legally protected interest which is

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“concrete and particularized” and that their alleged injury in fact is “actual or imminent, not

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conjectural or hypothetical.” Id. Plaintiffs assert that they have a legally protected interest because

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of the PLA contract (ECF No. 37-1) with Hardstone Construction. They further claim that their

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injuries include the lack of jobs, wages, and benefits for the employees working on the Subject

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Property that would have been facilitated through the PLA, and the dues earned by the union for

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those members working on the project. However, the PLA is a one-page document entitled

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“Memorandum of Agreement between Laborers International Union of North America Local No.

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872 and An Employer” that binds Hardstone to a collective bargaining agreement. ECF No. 37-1.

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The document, dated May 31, 2007, does not indicate that Plaintiffs have standing to assert any

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claims on any developments that Hardstone may be contracted to work on in the future. There is

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no evidence that the PLA applies to the Subject Property and the dispute at issue.

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The causal connection between Defendants’ conduct and Plaintiffs’ alleged harm is

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extremely attenuated. In the amended Complaint, Plaintiff adds its Business Manager, Tommy

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White, as a plaintiff, but neither Plaintiffs own the Subject Property nor have any vested or

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unvested rights to develop it. Plaintiffs assert that their injury arises from city government’s

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allegedly unlawful regulation of the Landowners’ Subject Property to which Plaintiffs were

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entitled to develop because of their PLA contract with Hardstone, which in turn has a contract with
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the Landowners. However, “much more is needed” to illustrate causation between Defendants’

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conduct and Plaintiffs’ asserted injuries. Lujan, 504 U.S. 555 at 562. Plaintiffs do not have any

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relevant contracts or privity with Defendants. The independent actions and interests of the

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Landowners, who are not before the Court, are also intervening factors between Defendants’

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conduct and Plaintiffs’ alleged injuries.

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The Court therefore grants both Defendants Seroka and Coffin’s Motion to Dismiss (ECF

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No. 49) and Defendant City of Las Vegas’s Motion to Dismiss (ECF No. 48) pursuant to Federal

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Rule of Civil Procedure 12(b)(1). As the Court has determined it does not have jurisdiction, it does

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not consider the remaining claims.

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VI.

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IT IS THEREFORE ORDERED that Defendant City of Las Vegas’ Motion to Dismiss

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Amended Complaint (ECF No. 48) and Defendants James Robert Coffin and Steve Seroka’s

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Motion to Dismiss Amended Complaint (ECF No. 49) are GRANTED.

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CONCLUSION

DATED: March 31, 2021

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RICHARD F. BOULWARE
UNITED STATES DISTRICT JUDGE

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