The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
This matter comes before the Court upon consideration of the
motion to dismiss Plaintiffs' Second Amended Complaint ("SAC")
filed by the City and County of San Francisco ("City"), the San
Francisco Airport Commission ("Commission"), and John L. Martin
("Mr. Martin") (collectively "City Defendants").
Having considered the parties' pleadings, relevant legal
authority, the record in this case, having had the benefit of
oral argument,*fn1 and for the reasons set forth in the
remainder of this Order, the Court GRANTS IN PART AND DENIES IN
PART the motion.
Covenant provides passenger and baggage security screening at
the San Francisco International Airport ("SFO"), pursuant to a
contract with the Department of Homeland Security and a lease with the City. (SAC, ¶¶ 15-17.) Local One is a labor
union that wants to be the recognized bargaining agent for
In February 2000, the Commission adopted Resolution No. 00-0049
entitled "Resolution Approving Use of Labor Peace/Card Check Rule
and Model Card Check Agreement," which is comprised of a
resolution, a rule, and a model agreement (hereinafter "Card
Check Resolution"). (See SAC, ¶ 17, Ex. 2.) The Card Check
Resolution enables a labor organization to become the recognized
representative for a group of employees through a mechanism that
is separate from election procedures established by the National
Labor Relations Act. (Id., ¶ 20.) Plaintiffs do not challenge
the validity or constitutionality of the Card Check Resolution.
Local One has had to compete with Service Employees
International Union Local 790 ("SEIU Local 790") in its efforts
to become the bargaining agent for Covenant employees. As a
result of a settlement agreement regarding disputes with SEIU
Local 790 and Covenant, Local One was given the right to call a
secret ballot election on the question of whether Covenant
employees wanted it as their bargaining representative. (See
SAC, ¶¶ 44-48.) Although not set forth in the SAC, Plaintiffs
lost the election. (See Opp. at 14, 15.)
Plaintiffs allege that the City Defendants have unlawfully
favored SEIU Local 790 over Local One. By way of example,
Plaintiffs allege that Mr. Martin only notifies American
Federation of Labor Congress of Industrialized Organizations
when the Airport selects a contractor. Plaintiffs also allege
that the City Defendants did not take affirmative steps to
prevent SEIU Local 790 organizers from harassing Local One
members and failed to remedy this when Local One complained.
Finally, Plaintiffs allege that the City Defendants apply the
terms of the Card Check Resolution in an unequal fashion. (See
generally SAC, ¶¶ 30-43.)
As of the date of the filing of the SAC, neither Local One nor
SEIU Local 790 had requested a Card Check Agreement with
Covenant. (Declaration of Tryg McCoy, ¶ 4.)*fn2 ANALYSIS
A. Legal Standards Applicable to Motions to Dismiss.
A motion to dismiss is proper under Rule 12(b)(6) where the
pleadings fail to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). A motion to dismiss should not be
granted unless it appears beyond a doubt that a plaintiff can
show no set of facts supporting his or her claim. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); see also De La Cruz v.
Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In ruling on a Rule
12(b)(6) motion, the complaint is construed in the light most
favorable to the non-moving party and all material allegations in
the complaint are taken to be true. Sanders v. Kennedy,
794 F.2d 478, 481 (9th Cir. 1986). The court, however, is not
required to accept legal conclusions cast in the form of factual
allegations if those conclusions cannot reasonably be drawn from
the facts alleged. Cleggy v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
As a general rule, "a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002) (citation omitted). A district
court may consider documents attached to a plaintiff's complaint
without converting a motion to dismiss into a motion for summary
judgment. Hal Roach Studios, Inc. v. Richmond & Feiner Co.,
Inc., 806 F.2d 1542, 1555 n. 19 (9th Cir. 1989). Unlike a Rule
12(b)(6) motion, in moving to dismiss under Rule 12(b)(1) a party
can "attack the substance of a complaint's jurisdictional
allegations despite their formal sufficiency, and in so doing
rely on affidavits or any other evidence properly before the
court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
B. Claims Against the City Defendants.
Plaintiffs assert one cause of action against the City
Defendants for violations of 42 U.S.C. § 1983 and
42 U.S.C. § 1985. Plaintiffs allege that the City Defendants' conduct in
favoring SEIU Local 790 and in failing to enforce the Card Check
Resolution in an equal manner deprives them of their rights: (1)
under the National Labor Relations Act ("NLRA"); (2) their First Amendment right to freedom of association; (3) their
Fourteenth Amendment right to equal protection; and (4) their
Fifth and Fourteenth Amendment rights to due process of the law.
(SAC, ¶¶ 67-73.)
The City Defendants move to dismiss portions of the Section
1983 claim pursuant to Rule 12(b)(6) on the grounds that
Plaintiffs have not been deprived of their due process rights
under the Fifth and Fourteenth Amendments and have not been
deprived of their First Amendment right to freedom of
association. The City Defendants move to dismiss the Section 1985
claim under Rule 12(b)(6) on the ground that Plaintiffs are not
members of a protected class. Finally, the City Defendants move