Cotter v. Desert Palace, Inc.

880 F.2d 1142, 1989 WL 82379
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 28, 1989
DocketNo. 88-15084
StatusPublished
Cited by12 cases

This text of 880 F.2d 1142 (Cotter v. Desert Palace, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotter v. Desert Palace, Inc., 880 F.2d 1142, 1989 WL 82379 (9th Cir. 1989).

Opinion

FARRIS, Circuit Judge:

Plaintiffs appeal from an order denying their motion for a preliminary injunction. We affirm.

BACKGROUND

The plaintiffs are professional dice dealers at Caesar’s Palace Casino in Las Vegas. The dealers work in crews of four, with each crew assigned to one dice table per shift. They are paid hourly wages by the casino and receive customer tips, or “tokes.”

Prior to March 1, 1988, there was a longstanding practice at Caesar’s of distributing tips on a “crew for crew” basis. At the end of each shift, the four dealers assigned to a given table would pool their tips and divide them equally among themselves. On March 1, 1988, IRS agents entered Caesar’s and executed levies upon two dice dealers. That afternoon, Caesar’s issued an interdepartmental memorandum changing its tip-distribution policy. Under the new policy, dealers from all shifts are required to group all tips for a twenty-four hour period, and then to divide the total evenly, without regard to the contributions of particular crews.

In order to implement the new policy, Caesar’s directed the formation of a “toke committee.” On March 20, the dealers elected four representatives to sit on the committee. The dealers also voted to share tokes with sick and vacationing dealers, and to establish a Medical Assistance Plan for dealers with long-term illnesses.

On April 11, the committee informed management that it had decided on a policy of sharing tips with boxmen — supervisory workers who occasionally fill in for dealers. Caesar’s promptly rejected the proposal. On June 27, the casino rejected a proposal by which each dealer would receive a share of tokes proportional to his crew’s contribution to the 24-hour pool. The casino has also placed restrictions on how and where the dealers may collect, store, and distribute the tokes.

In mid-April, the committee provided management with a document entitled, “Caesar’s Palace Association of Dice Dealers — Policies and Procedures.” The document stated that all dealers were “required” to join the Association, and that the object of the Association was to “deal[ ] with the communal concerns of the Dice Dealers that arise in the normal course of employment.” The document listed several functions which would be served by the Association, including “[m]eet[ing] with Hotel Management as requested,” and “[ijnforming all Dice Dealers of any related policy and/or procedure change.” On April [1144]*114420, the Casino responded with a memo stating that the only requirement of dice dealers was that they pool tips on a 24-hour basis, and divide them in an equitable manner. “The toke committee is required only for the purpose of distributing the tokes and nothing more.” “Management does not intend to deal with either the ‘Association’ or the toke committee with respect to concerns that arise in the normal course of employment or any related policy or procedure change.”

On March 7, 1988, 101 of the 116 dice dealers at Caesar’s Palace filed suit in Nevada state court, alleging breach of contract, deprivation of civil rights, and the creation of a mandatory labor organization in violation of Nevada’s right-to-work laws. N.R.S. § 613.130. Caesar’s removed the action to federal district court. On June 18, 1988, the district court denied plaintiff’s motion for a preliminary injunction, and granted defendant’s motion to dismiss the claims based on Nevada’s right-to-work laws. The court held that these claims were preempted by the National Labor Relations Act and were within the exclusive jurisdiction of the NLRB. Plaintiffs appeal from both the denial of a preliminary injunction and the dismissal of their state right-to-work claims.

SCOPE OF THE APPEAL

We have jurisdiction to review the denial of a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). Dismissal of portions of a complaint, on the other hand, is an interlocutory order which is generally not reviewable unless the trial court certifies it as final under Fed.R.Civ.P. 54(b). Atterbury v. Carpenter, 310 F.2d 126 (9th Cir.1962). The district court specifically refused to certify its dismissal of the right-to-work claims as a final order. Plaintiffs argue that we may nonetheless review the dismissal because it is inseparably intertwined with the decision to deny preliminary injunctive relief.

Plaintiffs rely on Marathon Oil Co. v. United States, 807 F.2d 759 (9th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987), where we held that an interlocutory ruling on the merits, although normally unappealable, was “inextricably bound up” with the grant of preliminary injunctive relief, and therefore could properly be reviewed on appeal from the grant of the preliminary injunction. 807 F.2d at 764.

The rationale of Marathon Oil does not apply. In order to grant a preliminary injunction, a court must first decide that the underlying claim has some chance of success. In that sense, a grant of preliminary relief necessarily addresses the merits — albeit under an attenuated standard. By contrast, a court may deny preliminary injunctive relief on grounds entirely unrelated to the merits of the underlying claim: adequacy of monetary relief; a balance of hardships tipping in favor of the nonmoving party. The denial of preliminary relief is thus not inextricably intertwined with an interlocutory ruling on the merits, and there are therefore no compelling reasons to depart from the final judgment rule. We consider the merit of plaintiffs’ right-to-work claims only as an incident to our review of the denial of preliminary injunctive relief.

STANDARD OF REVIEW

“In this circuit, preliminary injunctive relief is available to a party who demonstrates either (1) a combination of probable success and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips in its favor.” Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987). “As an ‘irreducible minimum,’ the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation.” Id. The moving party must also demonstrate at least “a significant threat of irreparable injury.” Id. See also Apple Computers, Inc. v. Formula International, Inc., 725 F.2d 521, 526 (9th Cir.1984); City of Anaheim, California v. Kleppe, 590 F.2d 285, 288, n. 4 (9th Cir.1978). The denial of a preliminary injunction is reviewed for abuse of discretion. Zepeda v. [1145]*1145United States, 753 F.2d 719, 724 (9th Cir.1983).

POSSIBILITY OF IRREPARABLE INJURY

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Cotter v. Desert Palace
880 F.2d 1142 (Ninth Circuit, 1989)

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Bluebook (online)
880 F.2d 1142, 1989 WL 82379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotter-v-desert-palace-inc-ca9-1989.