Case 2:07-cv-07225-MMM-SS
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Robert A. Bush (CA Bar # 65357) Email:
[email protected] David Adelstein (CA Bar # 105250) Email:
[email protected] Bush, Quiñonez, Gottlieb, Singer, López, Kohanski, Adelstein & Dickinson 3500 West Olive Ave., Suite 1100 Burbank, CA 91505 Telephone: (818) 973-3205 Facsimile: (818) 973-3201
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Jeffrey R. Freund (admitted pro hac vice) Email:
[email protected] Leon Dayan (admitted pro hac vice) Email:
[email protected] Jennifer L. Hunter (admitted pro hac vice) Email:
[email protected] Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth Street, NW, Tenth Floor Washington, D.C. 20005 Telephone: (202) 842-2600 Facsimile: (202) 842-1888 Attorneys for Defendant American Federation of Musicians of the United States and Canada
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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DAVID PARMETER et al., 21
Plaintiffs,
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v. AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA, et al.,
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Defendants.
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Case No.: CV07-07225 MMM (SSx)
WITHDRAWAL OF NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA
Withdrawal of Motion to Dismiss
Case 2:07-cv-07225-MMM-SS
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Defendant American Federation of Musicians of the United States and
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Canada (“AFM”) hereby withdraws its Notice of Motion and Motion to Dismiss
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(Docket Entry 16), filed on February 1, 2008.
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The Complaint filed in this matter challenges Defendant AFM’s
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interpretation of a provision of its Bylaws governing the obligation of members to
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pay work dues to local unions and of local unions to remit a portion of those dues
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to the AFM. Ninth Circuit law requires courts to defer to a union’s interpretation
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of its own constitution and bylaws absent “bad faith or special circumstances.”
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Because the Plaintiffs did not make any allegation in their Complaint that either
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bad faith or special circumstances were present, and because Defendant AFM did
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not believe, based on the internal union efforts by Plaintiffs to exhaust their
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remedies or otherwise, that Plaintiffs were planning to invoke either of these
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exceptions, AFM concluded that Federal Rule of Civil Procedure 12(b)(6)
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provided the appropriate procedural vehicle for disposing of this case.
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In their opposition to AFM’s motion to dismiss, Plaintiffs for the first time
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stated that their effort to challenge the AFM’s interpretation of its constitution is
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predicated on fact-based allegations of “bad faith or special circumstances.”
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While, in theory, AFM could continue to assert the pleading deficiency as a basis
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for its motion to dismiss, AFM is mindful that, as a practical matter, an amended
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complaint could cure that defect.
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Therefore, rather than litigate the issue of whether the Complaint adequately
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pled what Defendant AFM now understands to be Plaintiffs’ theory of the case,
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AFM will simply withdraw its 12(b)(6) Motion to Dismiss, with the intention of
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fully presenting its defense to this case via what now appears to be the most
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appropriate vehicle, a motion for summary judgment.
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WHEREFORE, Defendant AFM withdraws its Notice of Motion and Motion to Dismiss (Docket Entry 16).
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Withdrawal of Motion to Dismiss
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Respectfully submitted,
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_______/s/_________________ Robert A. Bush (CA Bar # 65357) Email:
[email protected] David Adelstein (CA Bar # 105250) Email:
[email protected] Bush, Quiñonez, Gottlieb, Singer, López, Kohanski, Adelstein & Dickinson 3500 West Olive Ave., Suite 1100 Burbank, CA 91505 Telephone: (818) 973-3205 Facsimile: (818) 973-3201
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Jeffrey R. Freund (admitted pro hac vice) Email:
[email protected] Leon Dayan (admitted pro hac vice) Email:
[email protected] Jennifer L. Hunter (admitted pro hac vice) Email:
[email protected] Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth Street, NW, Tenth Floor Washington, D.C. 20005 Telephone: (202) 842-2600 Facsimile: (202) 842-1888
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Attorneys for Defendant American Federation of Musicians of the United States and Canada
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Dated: February 28, 2008
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Withdrawal of Motion to Dismiss
