FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHY J. WARD, individually; 

DORA STARNES, individually;

BERTHA GARCIA, individually;

MANUELA PENA, individually; No. 04-17098 NANCY ESPINOSA, individually;

MARIA D.C. No. PANIAQUA, individually,  Plaintiffs-Appellants, CV-03-01184-PRO

v. OPINION

CIRCUS CIRCUS CASINOS, INC., a

Nevada Corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued October 16, 2006

Submitted January 4, 2007

San Francisco, California

Filed January 10, 2007

Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Beezer

215
COUNSEL

Romeo R. Perez, Las Vegas, Nevada, for the plaintiffsappellants.

Lionel Sawyer & Collins, Las Vegas, Nevada, for the

defendant-appellee. 

218 WARD v. CIRCUS CIRCUS CASINOS
OPINION

BEEZER, Circuit Judge: 

We consider whether federal labor law preempts union

members’ state law tort claims. Six employees (the “Workers”) claim their employer, Circus Circus Casinos, Inc.

(“Circus”), committed torts against them. The district court

granted summary judgment in favor of Circus, holding that

the Workers’ claims were preempted by Section 301 of the

Labor Management Relations Act (“LMRA”), the parties’

Collective Bargaining Agreement (“CBA”) and the Nevada

Industrial Insurance Act. The district court also denied the

Workers’ motion to amend their complaint and granted costs

and attorney’s fees in favor of Circus. 

We have jurisdiction under 28 U.S.C. § 1291. We reverse

the district court’s grant of summary judgment, affirm the

denial of the motion to amend, and remand with instructions

to remand to state court. 

I

During the relevant time period, the Workers were

employed by Circus and were members of a labor union. The

1997-2002 CBA between Circus and Local Joint Executive

Board of Las Vegas governed the Workers’ terms of employment. The CBA provided that union representatives may communicate with employees regarding union business so long as

such activities do “not interfere with the conduct of the

Employer’s business or with the performance of work by

employees during their working hours.” Under the CBA, Circus had the right to direct and control its employees. Disputes

between Circus and the union regarding the interpretation or

application of these CBA provisions had to be resolved by

arbitration. 

On May 3, 2002, Circus employees including the Workers

met during a scheduled work break in the Circus employee

WARD v. CIRCUS CIRCUS CASINOS 219
dining room. The purpose of the meeting was to distribute

leaflets and inform union members of the progress on contract

negotiations. After participants began distributing leaflets,

employee Al Williams stood on a chair and spoke about union

members defending their employment rights. In response,

meeting participants began chanting and shouting phrases

such as “union, yes” and “we want a contract.” 

Soon after the chanting began, Circus security guards interrupted the meeting and told the participants to leave. The participants instead locked arms in a circle around Williams to

prevent the guards from getting near him. The guards pushed

through the participants, pulled Williams off the chair and

handcuffed him. The Workers allege that in the process the

security guards grabbed, pushed and knocked them down. 

In September 2003, the Workers brought an action in

Nevada state court, alleging that Circus was liable for (1)

assault and battery, (2) false imprisonment, (3) intentional

infliction of emotional distress, (4) negligent infliction of

emotional distress, (5) negligent entrustment and (6) negligent

hiring, training and supervision. Circus removed the action to

the United States District Court for the District of Nevada.

The Workers moved to remand to state court, which the district court denied. In April 2004, Circus moved for summary

judgment, contending that § 301(a) of the LMRA preempted

the Workers’ claims, that the Workers failed to exhaust their

administrative remedies under the CBA and that the Nevada

Industrial Insurance Act provided the exclusive remedy for

the Workers’ claims. Almost two months after Circus filed its

motion, the Workers moved to amend their complaint to recharacterize the May 3, 2002, “labor union meeting” as an

“educational session” or similar non-meeting event. The district court granted Circus’ motion for summary judgment on

all three grounds and denied the Workers’ motion to amend

as futile and in violation of local rules. 

220 WARD v. CIRCUS CIRCUS CASINOS
II

[1] Circus argues that we should dismiss the appeal based

on the Workers’ numerous violations of Federal Rule of

Appellate Procedure 28(a) and Ninth Circuit Rule 30-1.

Numerous and egregious procedural violations may warrant

dismissal of an appeal. See In re O’Brien, 312 F.3d 1135,

1136-37 (9th Cir. 2002) (dismissal warranted by insufficient

record and improper brief format and content). Additional

considerations favoring dismissal may include (1) failure of

the appellant to cure procedural defects and (2) a nonmeritorious appeal. See Han v. Stanford Univ., 210 F.3d 1038,

1040 (9th Cir. 2000) (noting that appellant failed to file reply

brief to cure defects); N/S Corp. v. Liberty Mut. Ins. Co., 127

F.3d 1145, 1146 (9th Cir. 1997) (“[W]e would feel most

uneasy if this were an otherwise meritorious appeal, which

cried out for reversal of the district court’s decisions.”). 

[2] The Workers’ appeal is meritorious, and their procedural violations were not so egregious as to prevent Circus

from meaningfully responding to the appeal. We conclude

that these considerations outweigh the gravity of the procedural violations. Our September 25, 2006, order to appellants’

counsel to show cause why sanctions should not be imposed

is hereby discharged.

III

We reverse the district court’s grant of summary judgment

in Circus’ favor. A district court’s grant of summary judgment

is reviewed de novo. Brown v. Lucky Stores, Inc., 246 F.3d

1182, 1187 (9th Cir. 2001). Viewing the evidence in the light

most favorable to the nonmoving party, we determine

“whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of

material fact.” Id. 

[3] A district court’s finding of preemption by § 301 of the

LMRA is an issue of law that we review de novo. Humble v.

WARD v. CIRCUS CIRCUS CASINOS 221
Boeing Co., 305 F.3d 1004, 1008 (9th Cir. 2002). Section 301

preempts state law claims that require the court to interpret a

CBA provision that is reasonably relevant to the resolution of

the dispute. Cramer v. Consol. Freightways, Inc., 255 F.3d

683, 693 (9th Cir. 2001) (en banc). “The plaintiff’s claim is

the touchstone for this analysis; the need to interpret the CBA

must inhere in the nature of the plaintiff’s claim.” Id. at 691.

When the parties do not dispute the meaning of contract

terms, the fact that a CBA will be consulted in the course of

state law litigation does not require preemption. Id. at 690-91.

A defense based on the CBA is alone insufficient to require

preemption. Caterpillar Inc. v. Williams, 482 U.S. 386, 398-

99 (1987); Cramer, 255 F.3d at 690. 

[4] For each of the Workers’ claims, the determinative

question “is whether ‘the state law factual inquiry . . . turn[s]

on the meaning of any provision of the collective-bargaining

agreement.’ ” Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir.

1991) (quoting Ackerman v. W. Elec. Co., 860 F.2d 1514,

1517 (9th Cir. 1988)). The Workers bring two types of claims

based on the alleged physical force used against them by the

Circus security guards. The first type directly challenges the

force used and includes claims of assault and battery, intentional infliction of emotional distress and false imprisonment.

The second type involves Circus’ alleged negligence and

includes the Workers’ claims of negligent infliction of emotional distress, negligent entrustment and negligent hiring,

training and supervision. 

[5] As to both types of claims, Circus argues that the CBA

must be interpreted to determine whether the Workers’ union

activity interfered with company business and was in violation of the CBA. The Workers contest the restraint, physical

force and threats used against them by Circus security guards.

Their claims do not depend on an interpretation of permissible

union communications. Even if the Workers’ activities interfered with Circus’ operations or were not permissible under

the CBA, Circus may be liable under state law if the facts sur222 WARD v. CIRCUS CIRCUS CASINOS
rounding the guards’ behavior, as alleged by the Workers, are

proved. See Galvez, 933 F.2d at 777 (no need to interpret

CBA because “acts alleged would violate state law irrespective of the identity of the wrongdoer or of his victim”).1

[6] The CBA also does not set forth procedures for

employee control or authorize the use of threats, physical

force or restraint. CBAs typically do not govern such conduct,

and state claims involving physical threats or force used

against an employee usually are not preempted. See Smith v.

Houston Oilers, Inc., 87 F.3d 717, 720 (5th Cir. 1996)

(“Where the complained-of actions consist entirely of an

employer’s physical battery of an employee, there is no need

for reference to a labor agreement[.]”); Galvez, 933 F.2d at

777 (assault and battery claim not preempted). The Workers’

claims do not require interpretation of the agreement.2See

Miller v. AT&T Network Sys., 850 F.2d 543, 550 n.5 (9th Cir.

1988) (state tort claims are not preempted “if the particular

CBA does not govern the offending behavior”). 

[7] Circus contends that its right to direct and control its

employees pursuant to the CBA requires interpretation and

1Circus attempts to distinguish Galvez from this case by pointing to the

Workers’ mild injuries, the alleged justification for the Circus guards’

conduct and the connection to union activity. Such considerations do not

resolve the preemption analysis in this case. The crucial inquiry is whether

the Workers’ claims require interpretation of the CBA. See Galvez, 933

F.2d at 776. 

2The cases relied on by Circus are distinguishable because they

involved claims arising out of the implementation of CBA procedures

such as investigation, discipline or discharge. See, e.g., Miller v. AT & T

Network Sys., 850 F.2d 543, 545, 551 (9th Cir. 1988) (involving plaintiff’s

reassignment and dismissal); Williams v. Lear Operations Corp., 73 F.

Supp. 2d 1377, 1382 (N.D. Ga. 1999) (involving employer’s alleged failure to discipline or discharge harassing co-worker). Circus also relies to

a great extent upon an unpublished decision, Romero v. Hilton Hotels

Corp., 1991 WL 340574, Civ. No. 90-00152 (D. Hawaii June 3, 1991),

which involved claims arising from search and investigation procedures

governed by the CBA. 

WARD v. CIRCUS CIRCUS CASINOS 223
amounts to consent by the Workers to the challenged conduct.

To the contrary, Circus’ right to direct and control its employees cannot reasonably sanction any level of threats, physical

force or restraint, even if the employees’ activities interfere

with company business. Cf. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 25 n.28 (1983)

(“[A] state battery suit growing out of a violent strike would

not arise under § 301 simply because the strike may have

been a violation of an employer-union contract.”), superseded

by statute on other grounds, 28 U.S.C. § 1441(e). The connection between Circus controlling its employees and using

any amount of physical force against them is even more attenuated than the connection held to be insufficient in this court’s

en banc Cramer decision. See 255 F.3d at 694-95 (claims

involving hidden video cameras in bathrooms do not fall

within the scope or require interpretation of CBA provision

for using surveillance video). 

[8] Circus’ argument constitutes a defense or justification

for the physical force used against the Workers and does not

warrant preemption. See Caterpillar, 482 U.S. at 398-99. For

example, Circus may assert state law defenses concerning a

hotel owner’s right to use reasonable force to remove a trespasser or anyone acting in a disorderly manner. The fact that

the CBA may be consulted to determine whether the guards’

behavior was reasonable does not require preemption. See

Cramer, 255 F.3d at 690-91. A state law claim is not preempted simply because it may require consideration of the

same factual issues as a federal labor claim. Lingle v. Norge

Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988); cf. Smith,

87 F.3d at 720 (physical force against employees “is properly

regarded as an issue of state law, not a matter of federal labor

concern”). Circus’ tort liability does not hinge upon whether

the Workers’ activities violated the CBA. 

[9] As to the Workers’ negligence based claims, Circus

argues that the CBA must be interpreted to determine the particular duties of care owed to the Workers. State law negli224 WARD v. CIRCUS CIRCUS CASINOS
gence claims are preempted if the duty relied on is “created

by a collective-bargaining agreement and without existence

independent of the agreement.” United Steelworkers v. Rawson, 495 U.S. 362, 369 (1990). The Workers do not invoke or

refer to any duty arising from the CBA. The Workers refer

instead to Circus’ duty of care (1) in hiring and entrusting its

security guards to protect its property, and (2) to “all foreseeable Plaintiffs” in hiring, training and supervising employees.

Circus is “accused of acting in a way that might violate the

duty of reasonable care owed to every person in society.” 495

U.S. at 371. The Workers’ negligence claims do not require

interpretation of the CBA. 

[10] We conclude that § 301 of the LMRA does not preempt any of the Workers’ state law claims. The issue whether

the Workers exhausted their remedies under the CBA is moot.

We do not have federal jurisdiction to consider preemption by

the Nevada Industrial Insurance Act. See Galvez, 933 F.2d at

776, 781 (no jurisdiction to consider preemption by California’s Workers’ Compensation Act because no preemption by

LMRA). 

Circus argues in the alternative that sections 7 and 8 of the

National Labor Relations Act (“NLRA”) preempts the Workers’ claims. Such preemption, called Garmon preemption

after the Supreme Court’s decision in San Diego Building

Trades Council v. Garmon, 359 U.S. 236 (1959), does not

alone create federal question jurisdiction. See Hayden v.

Reickerd, 957 F.2d 1506, 1512 (9th Cir. 1991); cf. Caterpillar, 482 U.S. at 398 (NLRA preemption does not provide

basis for removal to federal court). Garmon preemption vests

jurisdiction exclusively in the National Labor Relations

Board. Hayden, 957 F.2d at 1512. The state court must consider whether Garmon preemption controls. See id.

IV

[11] We affirm the district court’s denial of the Workers’

motion for leave to amend their complaint. We review a disWARD v. CIRCUS CIRCUS CASINOS 225
trict court’s denial of a motion to amend a complaint for an

abuse of discretion. Zivkovic v. S. Cal. Edison Co., 302 F.3d

1080, 1087 (9th Cir. 2002). The Workers’ motion to amend

violated the local rules, and the district court may in its discretion deny their motion on that basis alone. See Waters v.

Weyerhaeuser Mortgage Co., 582 F.2d 503, 507 (9th Cir.

1978) (court has discretion to deny motion to amend for failing to attach proposed pleading as required by local rule). The

proposed amendment also would not have affected jurisdiction. See Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435,

443 (9th Cir. 1991) (overruled on other grounds by Cramer,

255 F.3d at 696) (futility of amendment, among other things,

weighs against allowing leave to amend). The district court

did not abuse its discretion in denying the Workers’ motion

to amend. 

V

[12] In light of our resolution of the preemption issue, we

reverse the district court’s order of garnishment awarding Circus costs and attorney’s fees. Each party shall pay their own

costs and fees. 

REVERSED in part, AFFIRMED in part, and

REMANDED with instructions to remand to state court. 

226 WARD v. CIRCUS CIRCUS CASINOS