ORDER RE DEFENDANT'S MOTION TO DISMISS (DOC. 15)
Plaintiff, Hilda L. Solis, the Secretary of the United States Department of Labor (the "Secretary"), brings this action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 481-483, requesting an order directing Defendant, the National Emergency Medical Services Association ("NEMSA"), to conduct an election for the offices of Vice President, Treasurer, California Bay Area Regional Director 1, California Bay Area Regional Director 2, California Valley Regional Director, Southern California Regional Director, and Northeast Regional Director under the supervision of Plaintiff. Doc. 19, First Amended Complaint ("FAC"), at ¶ 1. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that: (1) an election is currently being conducted by NEMSA for four of the positions listed above; and (2) the terms of the remaining three Directors do not expire until 2013. Doc. 15. Plaintiff opposes dismissal, arguing that: (1) NEMSA‟s promises to cure by holding an election do not justify dismissal; and (2) NEMSA‟s position that the three remaining Directors are not subject to re-election under LMRDA until 2013 is without merit. Doc. 21. Defendant replied. Doc. 22. The motion was originally set for hearing on March 15, 2012, but the hearing was vacated and the matter submitted for decision on the papers.
II.FACTUAL AND LEGAL BACKGROUND
Passage of the LMRDA in 1959 "was based, in part, on a congressional finding "from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct,‟ " requiring action to protect the rights of employees and the public. Hall v. Cole, 412 U.S. 1, 7-8 (1973) (citing 29 U.S.C. § 401(b)). "In an effort to eliminate these abuses, Congress recognized that it was imperative that all union members be guaranteed at least "minimum standards of democratic process....‟ " Id. (quoting 105 Cong. Rec. 6471 (1959) (Sen. McClellan)).
Title IV of the LMRDA directs unions to conduct regularly-scheduled officer elections. 29 U.S.C. § 481. A "national" or "international" labor organization must elect its "officers"*fn1 "not less often than once every five years...." § 481(a). A "local" labor organization must elect its officers "not less often than once every three years...." § 481(b).*fn2 So long as an organization‟s constitution and bylaws are not inconsistent with the LMRDA, elections should be conducted in accordance with the organization‟s founding documents. § 481(e).
Here, it is undisputed that NEMSA‟s bylaws provide for election of all officers every three years. Bylaws, Art. VI, § 7. The Bylaws also provide that the terms of office for all Directors shall be "staggered so that fifty percent (50%) plus one of the exact number of directors... are elected in even numbered years." Id. The Bylaws further provide that directors and officers shall be elected by "a secret ballot ... distribut[ed] to all members ... collect[ed] ... during the week preceding the June 1st membership meeting ("election week‟) and ... tabulated and posted at the June 1st membership meeting." Id., Art VIII, § 1(A)-(B).
When NEMSA was established in 2004, it had four constitutional officers: President, Vice President, Secretary and Treasurer. FAC at ¶ 12. Between 2004 and 2007, there were no Regional Directors. FAC at ¶ 15A. In August 2007, the positions of California Valley Regional Director and California Bay Area Regional Director 1 were created. FAC at ¶ 15B. Individuals were appointed from each region to fill these positions for three-year terms. See Doc. 16, Declaration of Torren K. Colcord, at ¶ 10.*fn3 In August 2010, the positions of Bay Area Regional Director 2, Southern California Regional Director, and Northeast Regional Director were created. FAC at ¶ 15C. Again, individuals were appointed to fill these positions for three-year terms. See Doc. 16, Colcord Decl., at ¶ 10.
With respect to the Vice President and Treasurer positions created in 2004, NEMSA has not conducted an election since in 2008. FAC at ¶ 14. The FAC alleges that Defendant was required to conduct an election for these positions in June 2011. Id. This did not occur. Id.
With respect to the two Regional Directorships created in 2007 (Valley and Bay Area Position 1), the FAC alleges, and NEMSA does not dispute, that elections were required in June 2010. FAC at ¶ 17. No such election took place. Id.
With respect to the three Regional Directorships created in August 2010, the FAC alleges that elections were required in June 2011. Id. No such election took place. Id.
After first exhausting any remedies available under a labor organization‟s constitution and bylaws, and within one month of exhaustion, any member of that labor organization may file a complaint with the Secretary alleging a violation of the LMRDA‟s election requirements. 29 U.S.C. 482(a). The LMRDA directs the Secretary to: [I]nvestigate such complaint and, if [s]he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, [s]he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this subchapter and such rules and regulations as the Secretary may prescribe.
29 U.S.C. § 482(b). Here, the FAC alleges that NEMSA member, Louis Nizzari, protested the above described electoral conduct, pursued all available administrative remedies, and timely filed a complaint with the Secretary. Id. at ¶¶ 19-26. The Secretary investigated the complaint and found probable cause to believe NEMSA violated the LMRDA and that any such violations had not been remedied as of the date this case was filed. Id. at ¶ 27.
If, "upon a preponderance of the evidence after a trial upon the merits, the court finds ... that an election has not been held within the time prescribed by [LMRDA] section 481 ... the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." 29 U.S.C. § 482(c).
III.STANDARDS OF DECISION
A.Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction.
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of jurisdiction over the subject matter." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary ...