F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D B R

O T H E R H O O D O F C A R P E N T E R S A N D J O I N E R S O F A M E R I C A ; S O U T H W

E S T R E G I O

N A L C O U N C I L O F C A R

P E N T E R S ; S O U T H W

E S T C A R

P E N T E R S J ATC; P A C I F I C N O R

T H W E S T R E G I O N

A L C O U N C I L O F C A R

P E N T E R S ; W A S H I N G T O N S T A T E U B C J ATC; N O R T H E A S T C A R

P E N T E R S R E G I O N

A L C O U N C I L O F C A R

P E N T E R S ; C A R P E N T E R S A N D C A R P E N T E R S D I S T R I C T C O U N C I L O F G R

E A T E R S T

. L O U I S A N D V I C I N I T Y ; L A R

R Y G O U L D ; W I L L I A M C L A Y T O N ; J O R D A N T R U M A N ; B U T C H P A R

K E R ; S C O T T F L

A N N E R Y ; R I C H A R

D B U R W E L L ; E M A N U E L L E E ; P A

U L L E D Y A R D ; J O S E P H E D N E Y ; W I L L I E M A R S H A L L ; J O H

N L A K E ; R O G E R J O H N S O N ; B R

I A N T H O M P S O N ; C H A R L E S M C W I L L I A M S ; B I L L Y C O O L E Y ; S H E R

Y L H O L L I S ; B O O K

E R S T A N D E R F E R ; B O B S C O T T ; J O E B A C A , Plaintiffs-Appellants

,

v

. N o. 12-36049

D.C. No. 2:12-cv-00109- TOR

OPI NI ONC A R P E N T E R S V

. B U I L D I

N G T R A D E S 2

B U I L D I N G A N D C O N S T R U C T I O N T R A D E S D E P ’ T , AF L

- CI O; J A M E S W I L L I A M S ; R O N A U L T ; D A V I D M O L N A A , Defendants-Appellees

.

A ppeal from the United States District Court for the Eastern District of W a shing ton Thomas O. Rice, District J udg e, Presiding

Arg ued and Submitted May 12, 2014—Seattle, W ashing ton

F iled October 28, 2014

B efore: Diarmuid F . O’Scannlain, Andrew J . Kleinfeld, and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e O’ScannlainC A R P E N T E R S V

. B U I L D I

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SUMMARY *

R ICO / Labor Law

T h e panel affirmed the dismissal o f an a ction brou gh t under RI CO a

nd the L abor Manag ement Reporting a nd Disclosure Act by the United B rotherhood of Carpenters a nd J oiners of America, a l a bor union, ag ainst the B uilding a nd Construction Trades Dep a r tment, AF L -CI O
, an umbrella labor org aniz ation representing u nions and individuals in the construction industry

.

The Carpenters, tog ether with subordinat e labor
org aniz ations and individu a l members, alleg ed that the B uilding Trades conducted a campaig n o f intense economic
pressure, as well as acts of vandalism a n d threats of force, to persuade the Carpenters to reaffiliate with the B uilding Trades and pay

dues to it.

The panel held that the Carpenters f ailed to s tate a civil RI CO claim because it did not plausibly alleg e any predicate acts, or racketeering activity

, u n d e r e i ther the Hobbs Act o r state ex tortion law. The p anel held that the Hobbs Act is not violated, a

nd a “claim of rig ht” defense is not defeated, based

on unwanted or subjectively valueless services in the c ontex t of an economic pressure campaig n. The panel also h eld that the Carpenters did not adequately all e ge t h at the B uilding Trades, its ag ents, or its coconspirators used violence or force
ag ainst the union or its members.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A R P E N T E R S V

. B U I L D I

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The panel held that the Carpenters failed to state a claim that officers of the B uilding Trades violated the L MRDA b y orchestrating the termination o f an a ffiliation ag reement between the Carpenters a nd the Metal Trades D epartment, AF L -CI O, another labor o rg a niz a tion, because Carpenters members w ere n ot e x pelle d f rom the Metal Trades as a disciplinary

action.

The panel h e ld that the district court did not a buse its discretion by deny ing leave to amend the complaint.

COUNSEL

Craig D. Sing er, W illiams & Connolly L L P, Washing ton, DC, a rg ued the cause a n d filed the briefs for the plaintiffsappellants. W ith him on the briefs were Charles Davant I V
, W illiams & Connolly L L P, W ash i n gt o n, DC, Daniel M. Shanley

, DeCarlo & Shanley

, L o s Ang eles, CA, and G

. Robert B lakey (Of Counsel), W illiam J

. and K. O’Neill Professor of L aw, Notre Dame L a w School, N otre D ame, I

N

.

L eon Day an , Bredhoff & Kaiser, PL L C, W ashing ton, DC,
arg ued the cause and filed the brief for the defe n d a n t s

appellees. With him o n the brief were Abig ail V. C a r t er, J oshua B

. Shiffrin, Matthew Stark Rubin, and L aurence Gold, B redhoff & Kaiser, PL L C, W a shing ton, DC.C A R P E N T E R S V

. B U I L D I

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OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decide whether a labor union’s u se of economic
p ressure is ex tortion under the Racketeer I nfluenced a nd Corrupt Org aniz ations Act.

I

The B uilding and Construction Trades Department, A F L

CI O
, (“B uilding Trades”) is an umbrella labor org aniz ation representing u n ions and individuals in the c onstruction i n dustry

. Subordinate labor unions pay the B uilding Trad e s per capita monthly fees and must c o m p l y with the B uilding Trades’ r u les. The United B ro t h e r h o od of Carpenters a nd J oiners of America (“Carpenters”) is no long er a ffiliated with the B uilding Trades because it believ e s that the B uilding T r a d e s ’ s e r v i c e s a r e “ u n r e q u e s t e d

, u n w a n t ed a n d
unnecessary

” and that its rules are “stale

, o utdated a nd anticompetitive.” 1

This case concerns the “Push-B ack-Carpenters Campaig n,” a c a mpaig n of (at least) intense economic
pressure orchestrated b y the B uilding Trades to force the Carpenters into pay ing what it calls “monthly b loated per capita pay ments in p erpetuity ,” that is, into reaffiliating with the B u i l d i n g Trades and pay ing dues. Alleg a tions o f “economic pressure” include: promoting a 2 008 AF L -CI O

1 A s w e are rev iew i n g a dism issal u n d er Fed eral Ru le o f C iv il P ro ced u re 1 2 (b )(6 ), w e accep t as tru e th e co m p lain t’ s w ell- p lead ed f

actu al alleg atio n s. E.g

. , OS U S tu d en t Allia nce v. Ra

y , 6 9 9 F.3 d 1 0 5 3, 1 0 6 1 (9 th Cir. 2 0 1 2 ).C A R P E N T E R S V

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resolution a

uthoriz ing the AF L -CI O to cha r ter a union to compete w ith the Carp e n t e rs; the org aniz ation of a “Unity Rally ” in St. L o u i s ; r e peated public criticism of the Carpenters on websites a nd in o ther publications; filing frivolous reg ulatory c laims ag ainst the Carpenters; stealing confidential information; fo r c i n g the Carpenters’ Seattle leg al counsel to terminate its r elationship w ith the Carpenters; a nd orchestrating the J une 2011 t e r m ination of an affiliation
ag reement (the “Solidarity A g reement” ) between the Carpenters and the Metal Trades Department, AF L -CI O.

The Carpenters’ complaint also a lleg es acts of v andalism and threats o f force, such as: vandalism of Carpenters’ job sites and property ; d eath threats ag ainst Carpenters’ officials and r epresentatives; threats o f violence at Pier 66 in Seattle; and the public dissemination of video foot a ge of a violent attack on Carpenters’ members.

Althoug h the Carpenters have not a cceded to the B uilding Trades’ d e mands, they a lleg edly have su f f e red sig nificant harm, including : “lost members a n d dues, lost o r reduced promotion, contractual and/or membership rec r uitment opportunities, lost job opportunities, p os i t i ons and work assig nments, loss of c onfidential information, increased costs d u e to the termination of contractual relations with its attorney s, and substantial and irreparable loss of g oodwill.”

The Carpenters, tog ether w ith six subo r d inate labor
org aniz ations and nineteen individual members, sued the B uilding T r a d es and three of its o fficers and ag ents: J ames W illiams, Ron A ult, a n d David Molnaa. 2 The Carpenters

2 T w o o th er in d i v i d u als n am ed as d ef en dan ts, Mark A y ers an d Ed Hill,

w ere v olu n tarily

d ism issed

.C A R P E N T E R S V

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alleg ed nine claims, f

our under the Racketeer I nfluenced a nd Corrupt Org aniz ations Act’s privat e cause of a ction (“civil RI CO”), 18 U.S.C. § 1964(c), one under the L abor Manag ement R e p orting and D isclosure Act (“L MRDA”), 29 U.S.C. § 411(a)(5), and four under state law.

Concluding that the Carpenters failed to alleg e prox imate causation or any predicate a ct s a n d also failed to join a necessary defendant to obtain injunctive relief u nder the L MRDA, the district court d ismissed all of the C a r p e n ters’ federal claims. See F ed. R. Civ. P. 12(b)(6). The court also declined to ex e rcise supplemental jurisdic t i o n over the state claims. F inally

, a l t h o ug h the Carpenters had not previously amended their complaint, the c ourt declined to g rant leave to amend on the g round of f u t i l ity

. The Carpenters timely appealed.

I I

RI CO provides a private cause of a ction for “[ a] ny person injured in his business or property by reason o f a violation o f [ 18 U.S.C. § 1962] .” 18 U.S.C. § 1964(c). Subsections 1962(a) throug h (c) p r oh ibit c ertain “pattern[ s] o f racketeering activity ” in re l ation to an “enterprise.” Subsection 1964(d) makes it illega l t o conspire to violate subsections (a), (b), and (c) of section 1962.

“The elements of a civil RI CO claim ar e a s follows: (1) conduct (2) of a

n enterprise (3) throug h a p a t tern (4) o f racketeering a ctivity ( known as ‘predi c ate acts’) (5) causing injury to plaintiff’s business o r p r o perty .” Living Designs, Inc. v. E.I. Dupont de Nemours & Co.
, 431 F .3d 353, 361 (9th Cir. 2 005) (internal quotation marks and citation omitted). “[ R] acketeering activity ” includes, inter alia

, “any act whichC A R P E N T E R S V

. B U I L D I

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is indictable” under the Hobbs Act, 18 U .S.C. § 1951, or “any
act or threat involving

. . . e x tortion,

. . . which is charg eable under State law.” 18 U.S.C. § 1961(1)(A), (B ).

The primary issue in this a ppeal is w hether the Carpenters plausibly alleg ed any predicate a cts, u nder either t h e H obbs Act or state ex tortion law.

A

“Ex tortion” under the Hobbs Act, “means the obtaining o f property from another, with his consent, induced by wrong f ul

use of actual or threatened force, violence, or fear, o r u nder color of official r i ght.” 18 U.S.C. § 1951(b)(2). The Carpenters’ complai nt alleg es that the B uilding T rades applied intense economic pressure in an effort to force them
to surrender their money and subm i t to B uilding T rades control.

F ear, in the contex t of the Hobbs Act, can include fear o f economic loss. See, e.g.
, Levitt v. Y elp! Inc.
, No. 11-17676, 20 1 4 W L 4290615, at *8 ( 9th Cir. Sept. 2
, 2014); United States v. Greger
, 716 F .2d 1275, 1278–79 ( 9 th Cir. 1 983); R ennell v. Rowe
, 635 F .3d 1008, 1012 (7th Cir. 2 0 1 1 ) ; Brokerage Concepts, Inc. v. U.S. Healthcare, Inc.
, 140 F .3d 494, 5 2 2 ( 3d Cir. 1998) (“The term ‘fear’ includes the f ear o f economic loss.”). B ut “there is nothing inherently wrong f ul about the use o f e conomic fear to obtain property .” United States v

. St u r m , 870 F .2d 769, 773 (1st Cir. 1989). “[ T] he fear of economic loss is a driving force of our econ omy that play s an important role in many leg itimate business transactions.” Brokerage C oncepts, Inc.
, 1 4 0 F .3d at 523. Courts must therefore d ifferentiate between leg itimate u se o f economic fear—hard barg a ining —and wrong ful use of suchC A R P E N T E R S V

. B U I L D I

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fear—ex tortion. S

e e , e

. g. , G eorge Lu s s i e r Enters., Inc. v

. Subaru of New England, Inc.
, 393 F .3d 36, 50 (1st Cir. 2004). “Distin g u i s h i n g between hard b arg a ining and ex tortion c an be difficult.” R ennell , 635 F .3d at 1011.

F or g uidance, courts hav e t u r n ed to United States v

. Enmons
, 4 10 U.S. 396 (1973). See, e .g. , Rennell

, 635 F .3d at 1011; Brokerage Concepts, Inc.
, 140 F .3d at 522. I n Enmons
, the Court hel d t h a t a defendant violates the Hobbs A ct only “where the obtai n ing of the property would itself be ‘wrong ful’ because the alleg ed e x t o rtionist has n o lawful claim to that property

. 410 U.S. at 400. Defending ag ainst an accusation o f ex tortion “based o n a lawful c laim to the property obt a ined has been dubbed the ‘claim of rig h t’ defense to ex tortion.” Brokerage Concepts, Inc.
, 1 40 F

. 3d at 522.

W h ere violence or v iolent threats are concerned, the claim of rig ht defense is strictly limited to employ e r-union labor disputes. U

nited S tates v. Daane
, 475 F .3d 1114, 1119–20 (9th Cir. 2007); see also Brokerage Concepts, Inc.
, 140 F .3d
at 523 & n.21 (collecting cases). B ut courts have recog niz ed

a claim of rig ht defense where p r o p e r ty is o b tained throug h the use of fear of eco n o m i c loss, which is n ot “‘inherently ’
wrong ful

. ” Id. at 523; see also, e .g. , United States v. V igil

, 523 F .3d 1 258, 1262–63 ( 10th Cir. 2008). “F ear of economic loss is not an inherently w rong ful means; however, when employ ed to achieve a wrong ful purpose, its ‘use’ is
wrong ful.” United States v. Clemente , 640 F .2d 1069, 1077 (2d Cir. 1981).

Thus, f ollowing Enmons
, using f ea r o f economic loss to obtain personal pay offs or p ay ments for “imposed, unwanted, superfluous and fictitio u s services,” 4 10 U.S. at 400, mayC A R P E N T E R S V

. B U I L D I

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well be ex tortionate

. S e e , e.g. , V

igil

, 523 F .3d at 1265 (finding ex tortion where g o vernment o fficial used economic
pressure to obtai n personal pay off by imposing unwanted employ e e who was unwill i n g t o w ork). I n either case, the transaction u sed to obta i n t h e property of another may be illeg itimate and the u se of economic pressure may be
wrong ful.

1

Even w here the Push-B ack-Carpenters Campaig n involve d l e g itimate means, such as chartering c ompeting unions, it was still ex tortionate, according to the Carpenters, because it was directed toward a wrong ful end—coercing the C a r p e n t e r s i n t o a c c e p t i n g “ s t a l e , o u t d a t e d a n d anticompetitive” services that “ are u n requested, unwanted and unnecessary

. ”

The Carpenters’ complaint does not plausibly a lleg e that the B uilding T rades demanded any sort o f p e r sonal pay offs. See, e .g. , Gregor
, 716 F .2d at 1278–7 9 ; Clemente

, 640 F .2d
at 1073. I nstead, it contends that the B uilding Tr a d es’ services are unwanted and w ould provide nothing of value to the Carpenters. B ut none of the cases cited by the Carpenters allows a Hobbs Act convicti o n b ased on unwanted o r subjectively valueless services in the contex t of an economic pressure campaig

n.

A claim of rig ht defense will not prot e c t someone w ho obtains the property o f another in return for “imposed, unwanted, superfluo u s and fictitious” services. Enmons
, 410 U.S. at 400 (emphasis a d ded) (citing United S ta tes v

. Kemble

, 198 F .2d 889 (3d C i r

. 1 9 52)). F ear c annot be used to force an “employ e r to pay wag es for an additional workerC A R P E N T E R S V

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to do ex actly wha t an other worker [ is] already being paid to do.” Viacom Int’l, Inc. v. Icahn

, 747 F

. Su p p

. 2 0 5
, 212 (S.D.N.Y. 1990) (citing Kemble

, 198 F .2d 889).

So in Vigil

, the case the Carpenters rely upo n most heavily

, the Tenth Circui t affirmed a H obbs Act ex tortion conviction w here the v ictim was required to “hi r e a specific and unwanted individual at the price she s e t s

. ” 523 F .3d at 1265. Vig il, t h e New Mex ico State Treasurer, insisted that the victim hire an unnecessary employ ee because he, Vig il, owed the potential employ ee’s husband money

. Id. at 1261. Even thoug h the prospective employ ee “did not want to work for the compensation,” Vig il tried to coerce the victim into
pay ing h e r 40% of the g ross income from a g overnment contract. See id. at 1262. Not only were her services “unwanted” but “the compensation w as intended as personal
pay off to [ Vig il’s] former a ssociate

. . . rather than to achieve

a leg itimate objective.” I d. at 1265. That w as e x tortion, according to the court. 3 B ut, unlike V igil

, there is no plausible alleg ation here that any B u il d i ng Trades official
soug h t a “per s o n a l pay off,” or misappropriated a g overnmental position.

More f undamentally

, a claim o f rig h t defense cannot be defeated by a c ontention that a particular transaction h as no “subjective” or “idiosy

ncratic” value. See, e.g. , Viacom Int’l

, 747 F

. Supp. at 212 n .7 (noting that a forced transaction was

ex t o rtionate where “[ n] othing of objective value transferred
to the plaintiff” (emphasis added)). Otherwi s e any p laintiff could bring a civil RI CO claim based on a bare alleg ation that whatever service or g oo d h e received in return for his property was o f no subjective value. However little value the

3 W e n eed n o t an d d o n o t d ecid e w h eth er Vig il w as co rrectly d ecid ed

.C A R P E N T E R S V

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Carpenters thinks the B uilding T rades might provide, its services are not the equivalent of Christopher Moltisanti’s “no show” construction job. See The Sopranos : Episode 402
, No Show (

HBO)

.

2

The Push-B ack-Carpenters Campaig n w as also

ex tortionate, a ccording to the Carpenters, because it used
wrong ful means, such as filing frivolous reg ulatory claims, o r misusing confiden tial membership information. The Carpenters’ arg ument r e l ies on a f requently cited passag e in Viacom Internatio n a l

, w here the d istrict court disting u ished hard barg aining from e x torti o n b y noting that, in the latter, the victim “has a pre-ex ist i n g entitlement to p ursue his business interests free of the fear he is quelling by r eceiving value in r eturn f

or transferring property to the defendan t

. ” 747 F

. Supp. at 213. B ecause the Carpenters had a leg al rig ht
to be free from frivolous reg ulatory claims or misused confidential information, it maintains, th e B uilding Trades’

c o n d uct was ex tortionate. Under that approach, a n y economic pressure campaig n that incl udes tortious conduct, for ex ample, would be a predicate offense to civil R I C O
, reg ardless of whether the a lleg ed tortfeasor d e manded
pay ment to refrain from harming the victim.

As the B uilding Trades contends, use of economic
pressure is wrong ful if the v ictim “had a pre-ex isting rig ht to the purported consideration being offered by the defendant a s

an inducement to e n ter into the transaction.” I f so, “ there is no leg itimacy

to the proposed transaction.” F or ex ample, in Rennell

, the defendant terminated a joint venture a nd g ave his former partner a take-it- o r- n o t h ing offer of 8% of w hat he owed. 635 F .3d at 1009, 1 013. Still, the defendant had aC A R P E N T E R S V

. B U I L D I

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claim of rig h t to h i s fo r mer p artner’s interest in the joint
venture: he had a rig ht to terminate the venture ag r eement. Id. at 1 012–13. A n d e v e n if the defendant breached the parties’ contracts or “acted in violation o f the g eneral duty o f
g ood faith and fair dealing ,” he did not forfeit his claim o f

r i g ht d efense. Id. at 1014. Such c laims “should b e p u rs u e d throug h state-law theories of contract a nd, perhaps, tort—not civil RI CO.” Id.

Clearer still is B rokerage Concepts, Inc.
, where an H MO required a pharmacy to use its subsidiary as a third-party provider if the pharmacy wanted ac c ess to the HMO’s provider network. 14 0 F. 3 d a t 525. I f the HMO had been leg ally c o m p e lled to g rant access to its network, the pharmacy “would h a v e h ad a leg al entitlement to be a member of the provider network and t h u s t o be free o f the fear that it w ould be ex cluded from that n etwork.” Id. at 526. B ut as the HMO w as not leg ally compelled to g rant access, its use of economic pressure was not wrong ful.

I n both of those cases, the decisive question was whether the victim had a pre-ex isting statutory or contractual rig ht to the consideration offered b y t h e defendant in return for the victim’s property

. I f so, the resulting transaction would have been an illeg itimate sham, and potentially a “wrong ful” g oal to pursue.

B u t none of the cases cited by the Carpenters involves an economic pressure campaig n declared “wrong ful” because it happened to include, incidentally

, tortious conduct or simple breach of c ontract. Fo r those cases to be on point, theC A R P E N T E R S V

. B U I L D I

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Carpenters would need to have a statutory or contractual rig ht
to the services the B uilding Trades o f fers, which it does not. 4

W e r e cently held that a lawy e r’s t h r e a t to a eng ag e p o t e n t i al witness to “do ‘whatever it is we n eed her to d o , ’ includi ng impeding the investig ation, ly ing to [an] investig ating Assis t a n t U .S. Attorney

. . . , and r epeating those lies to the g rand jury ” was “unlawful, and t h e r e fo re clearly wrong ful under the circumstances.” United States v. Villalob os , 748 F .3d 9 53, 955, 957 (9th Cir. 2014). Villalobos did n ot, however, hold that conduc t m u s t be characteriz ed as wrong ful if it involves a breach of duty derived from c ontract or tort law in the course of pursuing a leg itimate transaction. The proper remedy for such a breach is a claim under state law. And the Carpen t e r s ’ c o mplaint does not alleg e a violation of the Hobbs Act throug h the use of economic f

ear merely because the Bu ilding Trades mig ht have committed some tort o r breached some contract as part of the Push-B ack-Carpenters Campaig n.

4 In ad d itio n to b ein g u n su p p o rted b y p reced en t, th e C arp en ters’

ar g u m e n t in v ites u s to d eclare ex to rtio n ate u n d er t h e Ho bb s A ct an y

eco n o m ic p ressu re cam

p aig n in v o l v in g , n o m a tter h o w in cid en tally

, an y

v io latio n o f s tate law

. Su ch a d eclaratio n w o u ld tran sf orm in n u m erab le
state crim es an d to rts in to f e d e r a l c r im es. B u t th e Su p rem e Co u rt h as

rem in d ed u s j u s t recen tly th at w e sh ou ld ref rain f ro m in terp retin g f

ed eral
statu tes to “ ‘ alter sen sitiv e f ed eral- state relatio n sh ip s ’ ” b y “ co n v ert[in g ]

an asto n ish i n g am o u n t o f ‘ trad itio n ally l o c a l crim in al co n d u ct’ i n to ‘ a

m atter f o r f ed eral en f o rcem en t.’ ” Bo nd v. Un ited S ta tes , 1 3 4 S. Ct. 2 0 7 7
, 2 0 9 1 (2 0 1 4 ) (q u otin g Un i ted S t a tes v. Ba ss , 4 0 4 U.S. 3 3 6
, at 3 4 9

– 5 0 (1 9 7 1)).C A R P E N T E R S V

. B U I L D I

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B

B y contrast, use of “actual or threatened force or violence
to obtain property ” is “ inherently wrong ful” and not subject
t o a claim of rig ht defense. Daane
, 475 F .3d at 1119

– 2 0 (quoting U

nited States v. S

turm , 8 70 F .2d 769, 772–7 3 (1st C i r

. 1 989)). The question, therefore, is whether th e Carpenters adequ a tely alleg ed that the B uilding Trades, its
ag ents, or its coconspirators used violence or force a g ainst the Carpenters or its members.

1

The Carpenters’ brief p oints to three factual alleg ations that the B u ilding Trades o r a n amed defendant personally threatened violence.

F irst, it a sserts that “the B uilding Trades and W illiams publicly disseminated v ideo footag e of a violen t a t t ack o[ n] Carpenters’ members, accompanied b y a written warning that similar violence would ensue.” B u t the B uilding Trades did
not “publicly disseminate” the v i d e o. I nstead, the B uilding Trades disseminated a news release that me n t i o ned a video had “surfaced” on YouTube, but did not embed the video or i nclude a link. And the news release did not describe a violent attack o n the Carpenters, but a brawl that started when

one o f the Carpenters “ g rab[ bed] a n I ron W orker.” T he

re lease does n ot contain a warning of similar violence, just the phrases “[ c] raft unions are not taking this strug g le ly ing down,” and “the building trades unions turned out in force.”

Second, the C a r

p e nters’ brief mentions materials on a website that “ direct and e n c o u rag e violence.” Ag ain, this
overstates the complaint, which describes one potentiallyC A R P E N T E R S V

. B U I L D I

N G T R A D E S 16

t r o u b ling statement in an interview posted on the website : “Defendant Ay ers called the Carpenters ‘a ca ncer that is spreading ’ that n ee d e d t o b e confronted by ‘the k ind o f powerful response y o u would ex pect when a burg lar is caug ht stealing something of value.’”

F inally

, the brief d escribes “speeche s c ontaining antiCarpen t e r s threats and incitements

. . . to take violent actions.” Hill said the B uilding Trades w ould do “whatever it takes to protect our members”; A y ers called for a “united”
st a n d

, warned that B uilding T r ades members were “being threatened all around t h e n a tion,” and declared that “ [ t] his problem didn’t start in St. L ouis, b u t b y God it needs to e nd in St. L ouis”; and W illiams noted a “ line in t h e s a n d ” a nd

ex p lained “[ a] fter today

, there’s n o g oing b a ck

. ” Perhaps

re c o gn i z i n g that none of these statements sounds like a c all for violence, the complaint reiterates that each

, “[ i] n the
contex t of the past v i olence,

. . . mean[ t] to threaten and use phy sical violence and force.”

I n some c ontex ts, such statements c ould constitute threats of violence actionable under civil RI CO 5 —the Carpenters’ brief cites no remotely comparable case, see Daane
, 475 F .3d
at 1116–19—but not plausibl y i n this contex t. Prior to the statements, the complaint alleg es precisely one act o f vandalism by u nnamed “Defendants’ ag ents,” and two emailed “veiled death threats” ag ainst a Carpenters’ officer,

5 T h e B u ild in g T rad es n o t es th at h o ld in g su ch c o m m e n t s actio n ab le

u n d er civ il RICO w ou ld raise sig n i f ican t First A m en d m en t co n cern s. S ee NAACP v. Cla i b o rn e Ha r d wa re Co

. , 4 58 U.S. 8 8 6
, 9 0 0 n .2 8, 9 2 8 (1 9 8 2) (h o ld i n g th at Ch arles Ev ers’ s statem en t at a rally

, “ th at an y ‘ u n cle to m s ’

w h o b ro k e t

h e b oy co tt w o u ld ‘ h av e th e i r n eck s b ro k en ’ b y th eir o w n p eo p le,” w as p ro tected sp eech ).C A R P E N T E R S V

. B U I L D I

N G T R A D E S 17

without specify

ing how the individuals named as Defendants’ “ag ents” were connected to the Bu i l d ing Trades. The complai n t ’ s i nterpretation of the emails relies, in turn, on “prior and c ontemporaneous v iolent vandalism,” but includes only the one ex ample—anony mous vandalism not connected to the B uilding Trades.

The Carpenters’ complaint does not plausibly a lleg e that
any d e fendant used threats o f violence to obtain the Carpenters’ property

.

2

The Carpenters’ c o m p l a int also ties the B uilding T rades
to threats and violence b y non-parties, whom it labels coconspirators with and ag ents of the B uilding Trades.

E v e n in a complaint, formulaic recitations a n d “conclusory statement[ s] ” will n ot suffice to a lleg e conspiracy plausibly

. Kendall v. Visa U.S.A., Inc. , 518 F .3d 1042, 1048 (9th Cir. 2008). A complaint m u s t “ answer the basic questions: who, did what, to whom (or with w hom), where, and when? ” Id. B are assertions of “ ag reement,” id.
at 1047 (quoting Bell Atlantic Corp. v. Two m b l y , 550 U.S. 544, 557 (20 0 7 )), or identifications of particular persons a s “coconspirators,” id. at 1050, will not suffice.

The Carpenters’ c o mplaint recites seve r al “actions” “undertaken

. . . as part of, a nd in furtherance of, the unlawful conspiracy ,” but identifies the actors, if at all, m e r e l y a s “Defendants’ ag ents

. ” As to the actors who are actually named, the c omplaint simply refe r s t o them as “coconspirators,” who had “ag reed to act, and w[ ere] acting , on behalf of the Defendants

. ” No detailed facts are a lleg ed.C A R P E N T E R S V

. B U I L D I

N G T R A D E S 18

Such rote recitations do n o t render p l a u s i b le that the nonparties conspired with the B uilding Trades or ag reed with the B uilding Trades to commit or threaten violence. 6

Despite the Carpenters’ thoroug h b riefing

, its alleg ations

o f ag ency boil down to three facts: F irst, the perpetrat o rs o f various v iolent a c t i o n s , most of whom are unnamed, a re labeled “ Defendants’ ag e n t s.” B ut a mere label cannot demonstrate an ag ency relationship. Second, subordinate union members followed Defendants’ directions by eng a g ing in thre ats and violence. B ut those “directions,” described

a b o v e, simply did not amount to instructions to c omm i t violence. And in any case, the violent acts either predate the Defendants’ statements, o r postdate them by over a y ear. Third, the B uildin g Trades blessed a nd encourag ed the violence by d isseminating a Y ouTube v ideo. B u t, a s described above, the B uilding Trades ’ news release hardly amounts to blessing and encourag ing violence. 7

The Carpenters’ formulaic and conclusory alleg a tions o f conspiracy and ag ency do not sug g est plausibly that t h e

6 T erren ce O ’ Su lliv an , w

h o m ad e so m e o f th e m o st tro u b lin g statem en ts in th e reco rd

—ask i n g th e Un i ty R ally au d i en ce “ i f an y o n e h ad an y

r o p e? ”—is id en t if

ied i n th e co m

p lain t as a m em

b er o f th e B u i l d i ng T rad es’ Go v ern in g B o ard o f P resid en ts. Ev en if h e w ere a co co n sp irato r, h o ld in g h is statem en ts actio n ab le w o u ld raise F i rst A m en d m en t co n cern s. S ee su p ra , n o te 5

.

7 T h e Carp en t ers’ RICO case statem en t alleg es t h at Mark Kef

f ler, d u rin g

a p h o n e call w ith a Carp en ters rep resen tativ e , th reaten ed th at “ a lo t of
p issed o f f p eo p le o u t th ere .

. . w ill s tart k illin g [Carp en ters] so o n .” B u t Kef f ler is m erely lab eled “ Def en d an ts’ ag en t,” w ith n o su p po rtin g f actu al assertio n s co n cern in g h is co n n ectio n , if an y , to th e d ef

en d an t s.C A R P E N T E R S V

. B U I L D I

N G T R A D E S 19

B uilding Trades o r a

ny n amed defendant attempted to acquire the Carpenters’ property

throug h violence or threats.

C

Even if the Carpenters failed to alleg e ex tortion u nder the Hob b s A ct, it arg ues that it h as alleg e d “RI CO predicate offenses under twelve States’ ex tortion statutes.” F o r

ex a mple, some states do not p rovide a claim of rig ht defense
to the use of fear to obtain a v i c t i m ’ s property , and others prohibit threats of reputational h arm. B oiled down, the Carpenters’ brief s u g g ests that any conduct criminaliz ed under any state’s “ex tortion” statute is a proper RI CO predicate offense.

This arg u ment repeats the e r r o r o f a n arg ument rejected long ag o in United States v

. Nardello

, 393 U.S. 2 86 (1969), which concerned the meaning of “ex to rtion” in the Travel Act, 18 U .S .C. § 1952. Nardello arg ued that the A ct encompassed only conduct labeled “ex tortion” by a state statute, but not identical conduct labeled “blackmail,” for

ex a mple. Nard e l lo

, 3 93 U.S. at 293–94. Rejecting the
arg ument that the meaning o f ex tortion was tethered to the
state statute, the C o u rt held that the Act referred to conduct “g enerically classified a s ex tortionate,” th at i s to say , “obtaining something of value from another with his consent induced b y the wrong ful use of force, f ear, or threats.” Id. at 290.

The same g eneric definition of ex tortion applies under § 1961(1)(A). Scheidler v

. Nat’l Org. for W ome n , Inc.
, 537 U.S. 393, 4 09 (2003). The Carpenters would e x pand that definition to include any conduct labeled “ex tortion” under
any state statute. T h e district court correctly rej e c ted thatC A R P E N T E R S V

. B U I L D I

N G T R A D E S 20

arg ument. E ven if a state labels particular conduct e x tortion, “it c annot qualify as a p r e dicate offense for a RI CO suit unless it is capable of being g enerically classified a s

ex tortionate.” W

ilkie v

. Ro b b i n s , 551 U.S. 537, 5 67 (2007) (internal q

uotation mark s and c itation omitted). W hether under the H obbs Act or under the g e n eric definition, use o f fear must be “wrong ful” to be ex tortionate. 8

I n ad dition, the Carpenters’ brief contends that the “g eneric definition of ex tortion, in contrast to the Hobbs Act, does not require a showing that the defendant lacked a claim of rig ht to the p roperty in question.” I t labels the ex istence o f

a claim of rig h t an “affirmative defense” and cites United States v. Velasquez-Bosque for the propositi o n that “[ t] he availability of an af

f i r m a t ive defense is not relevant to the categ orical analy sis.” 601 F .3d 95 5
, 9 63 (9th Cir. 2 010) (declaring irrelevant that California’s carjacking statute does not permit a claim of rig h t defense, w hereas g eneric robbery does). B ut whether the defendant had a le gitimate claim to the property obtained by use of e conomic fear, a lthoug h called a “claim of r i g ht” d efense, is not actually an “affirmative defense” in this contex t. I n s t e a d

, it is an interpretation of what “wrong ful use of f ear”—an element o f both H obbs A c t and g eneric ex tortion—means. S ee , e.g. , Brokerage Concepts, Inc.
, 140 F .3d at 523. Thus, even if a stat e c r i minaliz e d the use of e conomic fear to achieve a

8 Reg ard less o f w

h eth er su ch reaso n in g d ef ies th e c a n o n ag ain st

su p erf lu ity

, as t h e Carp en ter s ’ brief asserts, it is co m p elled b y S u

p rem e Co u rt p reced en t. A n d, m o reo v er, th e r u le ag ain st red u n d an cy do es n o t req u ire t h e C arp en ters’ co n clu s io n

. If ev ery state w ere to ad o p t th e Ho b b s A ct w h o lesale as its law crim in alizin g ex to rtio n , Co n g ress’ s ch o ice o f th e d isj u n ctiv e w o u ld b eco m e “ su p erf lu o u s” b y n ecessity

.C A R P E N T E R S V

. B U I L D I

N G T R A D E S 21

leg itimate end, 9 t h e state offense would not equal generic

ex tortion.

That leaves, a s possible alleg a tions of g eneric e x tortion in violation of state law, the B uilding Trades’ alleg ed threats o f personal reputational harm to the Carpenters. See Nardello

, 393 U.S. at 295–96 (attempt to obtain money by threatening
to “ex pose alleg e d homosex u al conduct” fit within g eneric

ex tortion). The Carpenters’ brief does n o t cite any particular portion o f the record where the B u ilding Trades t h r eatened and inflicted reputational harm, and our revi e w o f the Carpenters’ compla i nt does not r eveal any such plausible alleg ations. See Levitt
, 2014 W L 4290615, at *9 (noting that

a “claim of reputational h a r m ” must be connected with “a specific alleg ation of wrong ful conduct”).

I I I

Nineteen Carpenters’ members alleg e that o f f icers Ault, W illiams, and Molnaa v iolated the L MRDA “by d irecting the unlawful suspension or ex pulsion of t h e C a rpenters a nd the I ndividual Plaintiffs throug h the revocation of the Solidarity Ag reements” without written charg es o r a hearing

. On

9 N o n e o f th e cases cited b y th e Carp en t ers co n cern ex t o rtio n b y f ear of

e c o n o m i c lo ss. A ll co n cern f ear of th reaten ed v io len ce, f o r w h ich th er e is n o claim

o f rig h t d ef en se, ex cep t in a sp ecif

ic lab o r co n tex t, u n d er th e Ho b b s A ct. S

ee Go mez v. Ga rcia
, 81 F.3 d 9 5
, 9 6 (9 th Cir. 1 9 9 6 ) (h o ld in g

n o claim of rig h t d ef

en se f o r th reat w ith a g u n ); Ra el v. S u l liva n , 9 1 8 F.2 d 8 7 4
, 8 7 5 (1 0 th Cir. 1 9 9 0 ) (h o ld i n g n o claim o f rig h t d ef en se f o r th reat to

“ k ick [v ictim ’ s] ass”); S ta te v. L o g a n , 2 9 So

. 3 3 6 (L a. 1 9 0 1 ) (h o ld in g n o claim o f rig h t d ef

en se f o r th reat to k ill); Pierce v. Co mmo n wea l t h

, 1 3 8 S.E. 2 d 2 8, 3 1

– 3 2 (Va. 1 9 6 4 ) (h o ld in g n o claim o f rig h t def en s e f o r th reat f ro m lo ad ed p isto l).C A R P E N T E R S V

. B U I L D I

N G T R A D E S 22

appeal, they arg ue that such a utomatic ex p ulsions a re unlawful.

Under the heading “Safeg uards ag ainst improper disciplinary

action,” L MRDA § 101(a)(5) provides that:

No member of any labor org aniz ation may be fi ned, suspended, ex pelled, or otherwise disciplined ex cept for nonpay ment o f dues b y such org aniz ati o n or by any officer thereof unless such member has been (A) served with written s p ecific charg es; (B ) g iven a reasonable time to prepare his d efense; (C) afforded a full and fair hearing

. 29 U.S.C. § 411(a)(5) (emphasis added).

The Carpenters’ member s were n ot ex pelled from the Metal Trade s a s a disciplinary action. S ee MerriamW e b ster’s Colleg iate Dictionary 356 ( 1 1 th ed. 2 005) (defining “to d iscipline” as “to p unish or penaliz e for the sake of discipline”); B lack’s L aw D iction ary 531 (9th ed. 2 009) (defining “discipline” as “[ p] unishment intended to correct o r instruct; esp., a s anction or p enalty imposed after an official finding of misconduct”). B oth the tex t and immediate c ontex t of section 101(a)(5) sug g est that a utomatic ex pulsion without written c h arg es and a full hearing is only a violation where th e ex pulsion is disciplinary

. F irst, the phrase “otherwise disciplined” limits the reach of the f irst three verbs—“fined, suspended, ex pelled”—to disc i plinary actions, a limitation that is also implied by the heading

. See, e.g. , Ram v. INS
, 243 F

. 3d 510, 514 & n.3 ( 9th C i r

. 2 0 0 1) (noting that a section’s heading may b e useful in interpreting its meaning ). Second, such procedural protections make little sense whereC A R P E N T E R S V

. B U I L D I

N G T R A D E S 23

an ex pulsion is not a disciplinary acti o n , b u t t he result of a dissolved af

filiation ag reement between competing labor unions.

F ur t h e r more, the c ases cited by the Carpenters concern disciplinary ex pulsions and are, therefore, not on point. See,
e.g. , Myers v. Affiliated Prop. Craft s m en Local No. 44
, 667 F

. 2d 817, 821 (9th C i r. 1 982). I f the Carpenters’

m embers w ere correct under the statute, then e i t h e r termination of such affiliation ag r eements would b ec o me practically imp o ssible o r the “full and fair hearing [ s] ”
g uaranteed by the s t a t u t e would become a farce. Neither result is required by

the statute or the case law.

I V

Althoug h the Carpenters did not r e q u e st leave to amend its complaint, it contends on appeal that the distri c t court abused its discretion by

deny ing such leave.

W h et her to g rant leave to amend is committed to t h e sound discretion of the d istrict court. Foman v

. Davis
, 371 U.S. 178, 182 (1962). “ [ W ] e first look,” therefore, “to whether the trial court identified and applied the correct leg al rule

. . . . Second, w e look to whether the trial court’s resolution

. . . resulted from a factual find i n g t h at was i l l o g ical, implausible, or w ithout support in inferences th at may be drawn from the facts in the record.” United S tates v

. Hinkson , 585 F .3d 1247, 1263 (9th Cir. 2009) (en banc).

The district court identified and applied the correct leg al rule. I t r ecog niz ed our r epeated admonition that “ a district

co u r t should g rant leave to a mend even if no r equest to amend the pleading was m a d e , unless it determines that theC A R P E N T E R S V

. B U I L D I

N G T R A D E S 24

pleading could not p o s s i b ly be cured by the alleg ation o f other facts.” Lopez v. Smith

, 203 F .3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States
, 58 F .3d 494, 497 (9th Cir. 1995)). And it properly cited the five factors to be considered “in assessing the pr o p r i ety of leave to amend—bad faith, undue delay

, pr e j u d ice to the opposing party , futility of a m e n d m ent, and whether the plaintiff has previously amended the complaint.” United Sta t es v

. Corinthian Colleges

, 6 55 F .3d 984, 9 9 5 (9th Cir

. 2 0 1 1). Nonetheless, the court declined to g rant leave t o a m end a s futile. Specifically

, it n o t ed the ex haustive leng th o f the Carpenters’ complaint and ex plained that it c o u l d not “conceive of a n y new facts that could possibly cure the pleading .”

W e are u nable to say that the distr i c t court’s finding is illog ic al, implausible, or without support in the record. I n fact, it is quite reasonable to suppose that the Car p e n t e r s’ “sprawling 246-pag e” complaint contained all of the k e y facts supporting its claims ag ainst the B u ilding Trad es

. The Carpenters’ b rief sug g ests it c o uld have cured the pleading ’s failure to alleg e an ag ency relationship b etween the B uilding Trades and those indi v i d u a ls who committed violent a nd threatening a cts. B ut neit h e r t h e brief nor counsel’s oral
arg ument has sug g ested s pecific facts that mig ht have cured such deficiency

.

V

W e conclude that the Carpenters’ complaint fails to state

a claim under civil RI CO or the L MRDA ag ainst the B uildingC A R P E N T E R S V

. B U I L D I

N G T R A D E S 25

Trades, and that the district c ourt did not abuse its discretion in deny ing leave to amend.

AF F IRMED.