NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CP ANCHORAGE HOTEL 2, LLC, DBA No. 21-35827 Anchorage Hilton,

Plaintiff-Appellant, D.C. No. 3:18-cv-00071-JMK

v.

MEMORANDUM*

UNITE HERE! LOCAL 878; UNITE

HERE!,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted July 8, 2022 Portland, Oregon

Before: R. NELSON and LEE, Circuit Judges, and RAKOFF,** District Judge.

CP Anchorage Hotel 2, LLC, (“Anchorage Hilton”) appeals the district

court’s decision to grant the motion of UNITE HERE! Local 878 (“the Union”) for

summary judgment and to deny Anchorage Hilton’s Rule 56(d) motion. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1. Since 2008, the Union—which represents workers in the hospitality

industry—has been unable to reach a collective bargaining agreement with

Anchorage Hilton. In 2009, the Union initiated a boycott of the hotel after

negotiations between the parties broke down. As part of its campaign, the Union set

out to convince customers of Anchorage Hilton to refuse business with the hotel.

Two non-profit organizations who had contracted with Anchorage Hilton to hold

conferences at the hotel in 2018—the Veterinary Cancer Society (“VCS”) and the

Alaska Society for Human Resource Management (“Alaska-SHRM”)—were the

targets of this campaign.

The Union primarily carried out its campaign through emails, physical mail,

and leafleting. It sent out approximately five waves of emails and letters to the

organizations’ executive committee members, conference organizers and speakers,

and in certain cases, the supervisors of executive committee members. Union staffers

also called the offices of VCS’s members and handed out leaflets where members of

the organizations worked. The Union urged the organizations’ leadership and

members to relocate their conferences, pointing to the ongoing labor dispute and to

alleged problems at the hotel.

2. In 2019, Anchorage Hilton filed its lawsuit against the Union. The hotel

argued that the Union’s communications with VCS and Alaska-SHRM amounted to

a secondary boycott in violation of the National Labor Relations Act (“NLRA”),

2 codified at 29 U.S.C. § 158(b)(4), and that it was entitled to damages under 29 U.S.C.

§ 187. Anchorage Hilton also asserted that Union staffers defamed the hotel by

making false representations during their calls to VCS and Alaska-SHRM offices.

On July 7, 2020, the Union filed its motion seeking summary judgment in the

Union’s favor on Anchorage Hilton’s various claims. On August 14, 2020,

Anchorage Hilton filed a Rule 56(d) motion asking the district court to delay the

summary judgment proceedings so that it could depose Carlos Cruz, the Union

representative whose calls to a VCS office formed the primary basis of the hotel’s

defamation claim. After further briefing and oral argument, the district court, on

September 3, 2021, granted the Union’s motion for summary judgment and denied

Anchorage Hilton’s Rule 56(d) motion.

3. We have jurisdiction to review the district court’s decision under 28 U.S.C. §

1291. We “review a [district court’s] grant of summary judgment de novo,” Los

Padres ForestWatch v. U.S. Forest Serv., 25 F.4th 649, 654 (9th Cir. 2022), and its

denial of a Rule 56(d) motion for abuse of discretion, see Singh v. American Honda

Fin. Corp., 925 F.3d 1053, 1076 (9th Cir. 2019).

4. The district court was correct to conclude that no reasonable fact finder could

view the Union’s communications as part of an unlawful secondary boycott. A union

engages in a secondary boycott only when it “threaten[s], coerce[s], or restrain[s]

3 [a] person engaged in commerce” with an intent to “forc[e]” that person “to cease

doing business with any other person.” 29 U.S.C. § 158(b)(4) (emphasis added).

As both the Supreme Court and this Court have explained, the NLRA must be

read in light of the protections afforded by the First Amendment to union speech and

speech-like activities. See DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades

Council, 485 U.S. 568 (1988); Overstreet v. United Bhd. of Carpenters & Joiners of

Am., Local Union No. 1506, 409 F.3d 1199 (9th Cir. 2005). Labor activity that is not

“threatening or coercive” falls outside the NLRA’s ambit because it is protected by

the First Amendment. See Overstreet, 409 F.3d at 1211.

None of the communications here could plausibly be viewed as threatening or

coercive. The communications simply stated the Union’s grievances. No executive

board member received more than four emails over a six-month period, nor did any

of the organizations’ members receive more than one letter by U.S. mail. Only a few

individual offices were called multiple times during the Union’s phone banking

campaign. Evidence that individuals were rude or aggressive during these calls is

scattered, and, in any event, does not amount to coercion under the high bar raised

by the statute. The photographic evidence of the Union’s leafleting, moreover,

plainly reveals that the Union staffers were not obstructing any entryway or

otherwise acting coercively. The communications, in sum, do not fall within the

NLRA’s prohibitions.

4 5. The lower court also properly dismissed Anchorage Hilton’s defamation

claim. In the Ninth Circuit, “[a] trial court can . . . consider [only] admissible

evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., 285

F.3d 764, 773 (9th Cir. 2002). Anchorage Hilton’s sole piece of evidence in support

of its defamation claim—testimony from VCS’s executive director that she was told

that its members received calls in which Union staffers made false

misrepresentations—is inadmissible hearsay. After excluding this evidence, the

hotel’s defamation claim lacks any evidentiary support.

6. The hotel counsel’s representation to the district court during oral argument

that Anchorage Hilton would accept “hav[ing] the motion [for summary judgment]

resolved” without further discovery was also proper grounds to deny the hotel’s Rule

56(d) motion. See Singh, 925 F.3d at 1076. Independently, Anchorage Hilton never

made a convincing showing of why it had not subpoenaed and deposed Mr. Cruz

during the substantial discovery period prior to summary judgment. See SEC v. Stein,

906 F.3d 823, 833 (9th Cir. 2018).

AFFIRMED.

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